Citation Nr: 1309346 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 04-28 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased rating for left knee cystic degenerative lateral meniscus, status post arthroscopy, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for right knee laxity with medial compartment space narrowing, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1982 to July 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of the Veteran's claims folder is currently with the Boston, Massachusetts RO. In October 2008, the appellant testified at a personal hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in increased rating claims when the issue of unemployability is raised by the record. Here, the Veteran initially submitted an application for a TDIU in April 2008. The issue was denied by a January 2012 rating decision. However, the Veteran recently submitted another application for entitlement to a TDIU. The issue has not yet been adjudicated. As such, under Rice, the Board has jurisdiction over the TDIU claim and appropriately listed the issue on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's case was previously remanded in January 2009, December 2010, and June 2012. In accordance with the prior remands, the AMC obtained the Veteran's Social Security Administration (SSA) records and all available VA treatment records including records from the Upstate New York Health Care Services Division and Togus, Maine VA Medical Center (VAMC). The December 2011 VA spine examination report, the January 2012 rating decision, and the private medical records from the Central Maine Medical Center have been associated with the claims file. The Veteran was provided a copy of all VA correspondence compiled since December 2010 via a June 2012 notification letter. The case was readjudicated by the January 2013 supplemental statement of the case (SSOC). Based on the above, there has been substantial compliance with the prior remands. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). Unfortunately, another remand is required in this case. The record shows that the Veteran was last afforded a VA examination with respect to his service-connected knee disabilities in June 2008, more than four years ago. In July 2012, the Veteran requested a new VA examination for his knees. He stated that he felt that a new examination would show that his knees have deteriorated to the point that he is in need of a knee replacement. In another statement, the Veteran explained that he has to wear permanent braces on his knees. Due to the passage of time and the complaints of worsening of the knee disabilities, the Board finds that additional development is warranted to determine the current nature, extent, severity and manifestations of the Veteran's service-connected knee disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new evaluation after a two year period between the last VA examination and the Veteran's contention that his disability has increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, VA is required to afford the Veteran a contemporaneous VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer, 10 Vet. App. at 403; see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The record shows that the AMC made reasonable efforts to obtain records from Dr. Shannon Kenney at the Lisbon Family Practice. The Veteran was sent a letter in September 2012 that the AMC had not yet received a response from the first request for records and that a second attempt for records was being made. There was no response to the second request. The Veteran should be notified that there was no response to the second request and allowed the opportunity to provide the records himself. The Veteran has claimed that his service-connected disabilities affect his employability. As noted in the Introduction, the issue of entitlement to a TDIU is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Recently, the Veteran submitted an application for entitlement to a TDIU, received by the Board in February 2013. The Veteran stated that he was unemployable due to his knees and back. He reported that he was told by Vocational Rehabilitation that it was no longer feasible for him to take classes and they thought he was unemployable. As these records may be relevant to the Veteran's claim, they should be obtained prior to further appellate review. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators, regardless of whether those records are physically in the claims file. See Bell v Derwinski, 2 Vet. App. 611, 613 (1992). In addition, the Veteran identified two prior employers as reflected in his application. Review of the claims file shows that Conifer Industries already provided a completed VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, in June 2008. However, the Veteran also identified JJ Elms Restaurant as a prior employer. The AMC should send a VA Form 21-4192 to JJ Elms Restaurant as identified by the Veteran in his application. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a notification letter regarding his claim for entitlement to a TDIU. The Veteran should be notified of VA's unsuccessful attempts to obtain records from Dr. Shannon Kenney at the Lisbon Family Practice and that he can submit the records himself. The Veteran should be given an appropriate amount of time to respond. 2. Send a VA Form 21-4192 to JJ Elms Restaurant. If clarification of the address is needed, contact the Veteran accordingly. 3. Associate the Veteran's VA vocational rehabilitation folder with the claims file. 4. Schedule the Veteran for a VA examination to ascertain the current extent and severity of his right and left knee disabilities. The claims folder must be made available to the examiner in conjunction with the examination. The examiner should report all clinical manifestations in detail. The examiner should indicate the degree on which pain first appears on flexion and extension of the right and left knees. The examiner should discuss the presence or absence of any weakened movement, excess fatigability with use, incoordination, painful motion, and pain with repetitive use, and provide an opinion as to how these factors result in any additional limitation of the knee. The examiner should discuss whether pain could significantly limit functional ability during flare-ups or when the right or left knee is used repeatedly over a period of time. This determination should, if feasible, be portrayed in terms of the degree of additional range of motion loss. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent probability or higher) that his service-connected disabilities (chronic back strain, radiculopathy of the left lower extremity, radiculopathy of the right lower extremity, right knee laxity with medial compartment space narrowing, arthritis of right knee, arthritis of left knee, and left knee cystic degenerative lateral meniscus status post arthoscopy), either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. 5. After undertaking any other development deemed appropriate, the RO should adjudicate the issues on appeal including entitlement to a TDIU. If any benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).