Citation Nr: 1601888 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 13-32 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for chronic lumbar strain. 2. Entitlement to an initial rating in excess of 10 percent for chronic right hip strain. 3. Entitlement to an initial rating in excess of 10 percent for chronic left hip strain. 4. Entitlement to an initial rating in excess of 10 percent for right patellofemoral knee syndrome. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: David Russotto, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to March 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that granted service connection for chronic lumbar strain (lumbar spine), right patellofemoral knee syndrome (right knee), and right and left chronic hip strain (right and left hip), and assigned initial ratings of 10 percent for the lumbar spine disability and noncompensable ratings for the right knee and bilateral hip disabilities. In May 2013, the RO granted ratings of 10 percent each for the right knee and right and left hip disabilities, effective the date of service-connection. The Veteran testified at a hearing before the undersigned Acting Veterans Law Judge by videoconference from the RO in August 2014. A transcript of the hearing is associated with the claims file. After certification of the appeal to the Board, the issue of TDIU was raised by the Veteran's attorney in connection with the pending appeal for increased initial rating claims. See March 14, 2014, Statement from Veteran's Representative. A formal claim was received by the RO in April 2014. As such, the Board has jurisdiction to consider TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that every claim for a higher evaluation includes a claim for TDIU where the appellant contends that his or her service-connected disabilities prevent employment). However, the Agency of Original Jurisdiction (AOJ) has not adjudicated the claim in the first instance. 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 remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran served as a U.S. Army carpenter. He sustained a serious left leg injury in a vehicle explosion in August 1967 and underwent a left below the knee amputation. In April 1968, the RO granted service connection for the left knee amputation and assigned a 40 percent rating, effective the day following discharge from active service. In January 2012, the RO granted service connection for lumbar spine, right knee, and right and left hip disabilities, secondary to the left below the knee amputation. The Veteran contended in an October 2012 notice of disagreement and during the August 2014 Board hearing that the service-connected disabilities of the lumbar spine, right knee, and right and left hips are more severe than are contemplated by the current 10 percent ratings. He contended in his April 2014 claim that he is unable to secure or pursue substantially gainful employment because of his left knee amputation and the secondary lumbar spine, right knee, and right and left hip disabilities. During the Board hearing, the Veteran testified that, since the most recent VA examination in January 2013, he has experienced increased back, knee, hip, and amputation stump pain with incapacitating flare-ups and limitations in extended walking, standing, climbing ladders, and heavy lifting. He testified that he worked previously in construction trades and currently works as a church custodian but notes that he is assigned limited duties, allowed rest breaks, and provided accommodations for missed days of work during flare-ups. He contended that his current employment is in a sheltered environment and that the compensation is below the poverty level. In August 2014, the Veteran submitted statements from his church employers, acquaintances, and a family member dated in August 2013, in which they reported observing the Veteran's decreased mobility, ability to function at work, and periods of bed rest. The Veteran also submitted records of care for the lumbar spine and a letter from a private chiropractor who observed the Veteran's decreased mobility and function. The chiropractor found that the Veteran was unable to achieve any gainful employment but addressed only mobility and lifting limitations. When a veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Weggenmann v. Brown, 5 Vet. App. 281 (1993). Although the January 2013 VA examination included an assessment of both knees, hips, and the lumbar spine, the Veteran did not report periods of incapacitation, and the examiner noted that the Veteran was no longer working and did not fully assess the functional limitations imposed by the combined disabilities. Although Board has jurisdiction and the Veteran waived consideration by the RO of the lay and chiropractor statements, the RO has not provided adequate notice or adjudicated TDIU claim in first instance, and the private assessment of occupational function is incomplete as it does not address the Veteran's capacity for less physically demanding work or whether the reported periods of incapacitation were directed by a physician. To ensure that the record reflects the current severity of the Veteran's back, knees, and hips, and in light of the Veteran's contentions of increased and additional symptomatology, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the service-connected disabilities, individually and in combination. The Veteran reported during the hearing that he receives on-going medical care at VA facilities. VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the RO should request VA medical records pertaining to the Veteran that are dated from January 2013 to the present. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran and his attorney with notice of the criteria for a TDIU with the opportunity to respond. 2. Contact the Veteran and ask that he identify the provider(s) of any additional treatment or evaluation he has received for his lumbar spine disability, right knee disability, right left hip disability, and/or left hip disability, records of which are not already associated with the claims files, and to provide any releases necessary for VA to secure such records of treatment or evaluation. All reasonable attempts should be made to obtain complete records of all such treatment or evaluation from all sources identified by the Veteran. 3. Secure for the claims file copies of the Veteran's relevant VA treatment records (dated from January 2013 to the present) and associate records received with the paper or electronic claims files. 4. If any of the above-requested 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). 5. After obtaining all outstanding records, schedule the Veteran for a VA orthopedic examination for the left knee amputation, right knee, right and left hips, and lumbar spine the current nature and severity of all his service connected disabilities. The paper file and access to the electronic record must be made available to and be reviewed by the examiner who must note the review in an examination report. Any indicated evaluations, imaging studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected left knee amputation, right knee, bilateral hips and lumbar spine. The examiner must provide an opinion whether the Veteran's lumbar spine disability, individually or in combination with the knee and hip disabilities, requires bed rest ordered by a physician during periods of flare-up pain and immobility. As part of the examination report, the examiner must specifically address the reports of the private chiropractor's records of care and July 2014 letter, the August 2013 letters from employers, acquaintances, and family member, and the Veteran's hearing testimony regarding his mobility and activity limitations in an occupational environment that requires walking and lifting. The examiner must also assess the Veteran's ability to leave the home, drive an automobile, shop, remain at a workplace for an eight hour workday, and perform non-physical tasks such as use of a telephone and computer keyboard. All opinions expressed should be accompanied by supporting rationale. 6. 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, readjudicate the Veteran's claims for increased ratings and for a TDIU based on the entirety of the evidence. If any of the claims remain denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. ISHIZAWAR Acting 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) (2015).