Citation Nr: 1532664 Decision Date: 07/31/15 Archive Date: 08/05/15 DOCKET NO. 11-08 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability rating greater than 10 percent for status post anterior cruciate ligament repair and degenerative joint disease of the right knee (previously, right knee injury and surgery) to include entitlement to a separate compensable rating for right knee instability prior to August 25, 2010. 2. Entitlement to a disability rating greater than 10 percent for left knee strain (previously, left knee injury and surgery) to include entitlement to a separate compensable rating for left knee instability prior to August 25, 2010 and entitlement to a temporary total evaluation due to June 2013 left knee surgery pursuant to 38 C.F.R. § 4.30. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) prior to May 21, 2010. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active military service from August 1972 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, denied disability ratings greater than 10 percent for each of the Veteran's service connected bilateral knee disabilities. The Veteran perfected a timely appeal of this determination. Subsequently, in a March 2011 rating decision, the RO granted separate compensable ratings for the Veteran's bilateral knee disorders. Specifically, the Veteran was assigned a 10 percent rating for his right knee instability and a 10 percent rating for his left knee instability effective August 25, 2010. See VAOPGCPREC 23-97 (July 1, 1997) and VAOGCPREC 9-98 (August 14, 1998) (VA's General Counsel has held that a Veteran who has limitation of motion and instability of the knee may be evaluated separately under Diagnostic Codes 5003 and 5257 provided additional disability is shown). While the Veteran did not perfect an appeal as to the March 2011 rating decision, the Board notes that the as the Veteran's claim for an increased rating for bilateral knee disabilities has been pending since his January 31, 2008 claim, the issue of entitlement to separate compensable ratings for bilateral knee instability prior to August 25, 2010 is presently before the Board. The Board notes that in a June 2009 VA Form 9 (which was considered a notice of disagreement as to the June 2008 rating decision), the Veteran indicated that he wanted a Board hearing. However, in a subsequent March 2011 VA Form 9 (which was considered to be the Veteran's substantive appeal as to the June 2008 rating decision), the Veteran indicated that he did not wish to have a Board hearing. As such, the Board finds that the initial request for a Board hearing has been withdrawn. See 38 C.F.R. § 20.702 (2014). With regard to the TDIU claim, during the course of this claim, the Veteran has submitted statements from his employer regarding the effect of the Veteran's service-connected bilateral knee disabilities on his employment. Specifically, in a July 2008 statement from the Veteran's employer, the United States Postal Service (USPS), it was noted that the Veteran had worked for USPS since June 1994 and, in 2005, began having significant issues with his knees. This was reiterated in a January 2011 statement from the Veteran's employer. Also, in March 2013, June 2014, and October 2014 VA examinations, it was noted that the Veteran's bilateral knee disorders impacted his ability to work. Significantly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that, when evidence of unemployability is presented in cases such as this, the issue of whether a TDIU will be assigned should be handled during the determination of the initial disability rating assigned at the time disabilities are determined to be service connected. Id. at 452-53. In this regard, in Rice, the Court determined that there is no freestanding claim for TDIU. Id. at 451. Rather, a claim for TDIU is considered part and parcel of the claim for benefits for the underlying disability. Id. at 453-54. Therefore, in considering the increased rating issues on appeal, the Board finds that the issue of entitlement to a TDIU is also currently before the Board, as reflected on the cover page. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. In April 2014 correspondence, the Veteran wrote that his bilateral knee disorders caused him to fall and fracture his right heel in February 2015 (probably February 2014). As such, the issue of entitlement to service connection for a right heel disorder as secondary to the Veteran's service-connected bilateral knee disorders has been raised by the record. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). Initially, this case was last adjudicated in a March 2011 statement of the case. Since this last adjudication, the Veteran has been afforded three additional VA examinations for his knees, specifically in March 2013, June 2014, and October 2014. As such, this case must be remanded so that the AOJ may consider the claims in light of the evidence received subsequent to the March 2011 statement of the case. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.37(b), 20.1304(a) (2014). Also, a review of the claims file shows that there are outstanding records pertinent to the issues on appeal which have not yet been associated with the claims file. Specifically, a review of the record shows that the Veteran submitted a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs in order for VA to obtain records from Dr. C. and Dr. W. with Resurgens Orthopaedics, Lee Watkin's Physical Therapists, and Dr. H.B.M. in May 2010. While records from Resurgens Orthopaedics were requested in June 2010, in a July 2010 response from Resurgens Orthopaedics, it was noted that the authorization form was not signed by the Veteran and a signed authorization form was requested. Unfortunately, no records from Resurgens Orthopaedics have yet been obtained and, it appears, that the AOJ has not yet made any follow-up attempt to obtain such records, to including requesting that the Veteran resubmit a signed VA Form 21-4142. Furthermore, it appears that the AOJ has made no attempt to obtain records from either from Lee Watkin's Physical Therapists and Dr. H.B.M. and, while there are some records from these providers dated through May 2009 and, in the May 2010 authorization form, the Veteran indicated that there were records from these entities dated through November 2009. As such, on remand, the RO should attempt to obtain such records. Furthermore, the Board notes that the level of severity of the Veteran's bilateral knee disorders appears to have changed significantly over the course of this appeal. The Veteran filed the current claim on appeal for an increased rating on January 31, 2008 and was afforded VA examinations in March 2008, August 2010, March 2013, June 2014, and October 2014. Disabilities of the knees are rated primarily, based on range of motion. The March 2008 VA examination report shows range of motion of the knees to be from 0 to 90 degrees, bilaterally. The August 2010 VA examination report shows range of motion of the knees to be from 0 to 100 degrees (with pain) on the right and 0 to 90 degrees (with pain) on the left. The March 2013 VA examination report shows range of motion of the knees to be from 0 to 65 degrees (with pain) on the right and 0 to 90 degrees (with pain) on the left. The June 2014 VA examination report shows range of motion of the knees to be from 0 to 130 degrees (with pain) bilaterally. Finally, the October 2014 VA examination report shows range of motion of the knees to be from 0 to 30 degrees (with pain) on the right and 0 to 140 degrees (with pain) on the left. Furthermore, while the RO granted separate ratings for instability of each knee effective August 25, 2010 (the date of a VA examination showing instability), it is unclear when the Veteran's instability actually began. Finally, a review of the claims file shows that the Veteran sustained a split, depressed, lateral tibial plateau fracture of his left knee in June 2013. In view of the disparity of flexion for both knees throughout the course of this appeal, the uncertainty as to when the Veteran's instability began, and the Veteran's June 2013 left knee fracture, a retrospective opinion regarding the severity of the Veteran's bilateral knee disorders, from the date the Veteran filed his claim for an increased rating on January 31, 2008, would be helpful in resolving the increased rating claims on appeal. Specifically, the examiner should comment on the level of severity of the Veteran's bilateral knee disorders since January 31, 2008 and opine whether the Veteran met the criteria for separate compensable disability ratings for bilateral knee instability any earlier than August 25, 2010. Also, as above, during the course of this claim, the Veteran has submitted statements from his employer regarding the effect of the Veteran's service-connected bilateral knee disabilities on his employment. Specifically, in a July 2008 statement from the Veteran's employer, USPS, it was noted that the Veteran had worked for USPS since June 1994 and, in 2005, began having significant issues with his knees. This was reiterated in a January 2011 statement from the Veteran's employer. Also, in March 2013, June 2014, and October 2014 VA examinations, it was noted that the Veteran's bilateral knee disorders impacted his ability to work. A claim for TDIU is not a freestanding claim. Rather, it is a claim for an increased rating (a total rating based on individual unemployability) for the underlying disability(ies). Such a claim may be expressly raised or it may be "reasonably raised by the record," and the claim may be filed as a component of an initial claim or as a claim for an increased rating for a service-connected disability. If a veteran asserts entitlement to a TDIU during the appeal of the initial evaluation assigned, such as in the present case, the issue is part of the underlying claim for an increased initial evaluation. Rice, 22 Vet. App. at 447. The Board finds that the Veteran has raised the issue of entitlement to a TDIU as part of his claim for a higher rating for the service-connected bilateral knee disabilities. Although they are listed separately on the title page, the issues are not independent and must be adjudicated as one claim. See Rice, 22 Vet. App. at 455. On remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU, be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and the AOJ should obtain all outstanding treatment records regarding his service-connected disability. Furthermore, an opinion should be retained regarding the functional effect that the Veteran's service-connected disabilities has on his ability to perform the activities of daily living, to include the physical acts required for employment. Also, pursuant to Rice, the TDIU claim on appeal is considered to have been filed in January 2008 (the date of the Veteran's claim for an increased rating). Significantly, while the Veteran did not meet the criteria for a TDIU on a schedular basis prior to May 21, 2010, the Board has expanded the appeal to include consideration of the Veteran's entitlement to a TDIU as a component of the claim for a higher rating on appeal prior to May 21, 2010 to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). Finally, potentially pertinent to all claims on appeal, it appears that there may be outstanding VA treatment records not yet associated with the record. A review of the claims file shows that the Veteran consistently sought VA treatment through April 2014, but there are no treatment records dated after April 2014. On remand, the AOJ should obtain any outstanding VA treatment records since April 2014. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Notify the Veteran of the necessity of obtaining treatment records pertaining to the level of severity of his bilateral knee disabilities beginning January 31, 2008, to include records from Dr. C. and Dr. W. with Resurgens Orthopaedics dated from March 2010 to April 2010, Lee Watkin's Physical Therapists dated from April 2009 to November 2009, and Dr. H.B.M. dated from April 2009 to November 2009, and inform the Veteran that he may submit these records himself or authorize VA to obtain them on his behalf. After securing any necessary authorization from him, obtain records from such entities. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Request all outstanding VA treatment records dated from April 2014 through the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After all records/responses received from each contacted entity are associated with the claims file, arrange for the Veteran to undergo VA examination for evaluation of his bilateral knee disorders, by appropriate medical professionals, at a VA medical facility. The content of the entire claims file (paper and electronic), to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should provide all examination findings, along with the complete rationale for the comments and opinions expressed. The examiner should conduct range of motion testing of each knee (expressed in degrees), noting the exact measurements for flexion and extension, and specifically identifying any excursion of motion accompanied by pain. If pain on motion in the knee is observed, the examiner should comment on the extent of pain, and indicate at which point pain begins. Tests of joint motion against varying resistance should be performed on the knee. The extent of any incoordination, weakened movement and excess fatigability on use should be described. In addition, the physician should indicate whether, and to what extent, the Veteran experiences likely additional functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express such functional loss in terms of additional degrees of limited motion. Based on x-ray results, the examiner should expressly indicate whether the Veteran has arthritis in either knee. The examiner should also indicate whether there is any lateral instability and/or recurrent subluxation in either knee. If instability is present, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate, or severe. The examiner should also provide an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, i.e., depressive disorder, bladder dysfunction, bilateral knee disabilities, facial scars, right elbow scar, lumbar spine disability, cognitive impairment, peripheral neuropathy of the lower extremities, tinnitus, right little finger fracture, right fibula fracture, erectile dysfunction, and bilateral hearing loss, either singularly and/or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. Thereafter, to the extent possible, the examiner should render a retrospective opinion regarding the severity of the Veteran's bilateral knee, from the date the Veteran filed a claim for an increased rating on January 30, 2008. The examiner should also opine whether the Veteran met the criteria for separate compensable disability ratings for bilateral knee instability any earlier than August 25, 2010. In rendering the requested opinion for the periods in question, the examiner should specifically consider and discuss all pertinent lay and medical evidence of record pertinent to the period in question, to include the following: (a) the disparity of reported flexion for both knees in the March 2008, August 2010, March 2013, June 2014, and October 2014 VA examination reports; (b) the disparity of reported instability for both knees in the March 2008, August 2010, March 2013, June 2014, and October 2014 VA examination reports; (c) private treatment records showing that the Veteran sustained a split, depressed, lateral tibial plateau fracture of his left knee in June 2013. The examiner should set forth the complete rationale for the conclusions reached in a printed (typewritten) report. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. In the readjudication of such claims, the AOJ should consider the propriety of assigning a temporary total rating for convalescence under 38 C.F.R. § 4.30 in light of the June 2013 left knee surgery. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).