Citation Nr: 1340783 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 12-12 825 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia patella. 2. Entitlement to an increased rating in excess of 10 percent for right knee chondromalacia patella. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Moses, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1987 to November 1989. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Detroit, Michigan, Regional Office (RO), which denied an increased rating in excess of 10 percent for left and right knee chondromalacia patella. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013). The Veteran last underwent a VA knee examination for compensation purposes in August 2009. In the December 2012 Informal Hearing Presentation, the Veteran's representative claimed that the Veteran's symptoms have worsened since the last VA examination in August 2009. In a December 2010 VA hip examination report, the examiner stated that the Veteran's knee pain interfered with range of motion assessment of the hips. The examiner further stated that the Veteran was unable to stand straight and without support. Although the mere passage of time is insufficient to require a new VA examination, where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately determine the current state of the disability, VA must provide a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007), see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Because the evidence of record indicates a worsening of the Veteran's bilateral knee disability, the Board finds that a new VA orthopedic examination is warranted. The record also contains evidence suggesting that the Veteran may be entitled to a TDIU due to her service-connected knee disorder. The Court has directed that when entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU requires an accurate assessment of the functional impairment associated with all of the Veteran's service-connected disabilities. In the December 2010 VA examination report, as to the effect of the Veteran's disability on her occupation and daily activities, the examiner stated that the Veteran was currently unemployed and that the Veteran's pain interferes with any extended walking, prolonged standing, and participation in daily activities. The Veteran reported that she believed that her employer did not rehire her after a layoff due to her knee disabilities. As previously noted, the examiner stated that the Veteran was unable to stand straight and without support. Given the foregoing, the evidence of record has raised a claim of entitlement to a TDIU and the issue is remanded for adjudication.. Accordingly, the case is REMANDED for the following actions: 1. Issue the Veteran notice in accordance with 38 C.F.R. § 3.159 with regard to the inferred claim for TDIU. 2. Associate with the record any VA clinical documentation dated after December 2010 pertaining to the treatment of the Veteran not already of record. 3. Then schedule the Veteran for a VA orthopedic examination to assist in determining the current severity of her service-connected bilateral knee disability. The examiner should conduct all diagnostic testing and evaluation needed to make this determination. The relevant documents in the claims file should be made available to the examiner for a review of the Veteran's pertinent medical history. Any indications that the Veteran's complaints or symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The examiner should specifically: a) Provide in degrees the Veteran's ranges of motion of both knees. b) Comment on whether and to what extent there is incoordination, weakened movement, or excess fatigability. c) Provide an opinion as to whether pain could significantly limit functional ability, including limitation of motion. d) Identify whether there is recurrent subluxation or lateral instability of the either knee, and if present, indicate the severity of such subluxation or instability (slight, moderate, or severe). e) Provide an opinion with respect to whether the Veteran's service-connected knee disabilities render her unable to secure or maintain substantially gainful employment. 4. After completion of the above and any additional development deemed necessary, readjudicate the issues of increased ratings for the left and right knees and adjudicate the issue of entitlement to a TDIU. If any benefit sought remains denied, the Veteran and her representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2013). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).