Citation Nr: 1603895 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-04 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased rating for degenerative arthritis, status post right knee trauma, open reduction and internal fixation with residual scar, currently evaluated as 10 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The appellant and C.C. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from July 1968 to February 1970. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In June 2014, the appellant testified at a Board hearing at the RO before the undersigned Veterans Law Judge. A transcript is of record. In a February 2015 decision, the Board reopened a previously denied claim for service connection for a left knee disorder. The Board remanded the underlying issue to the RO for additional evidentiary development, along with the remaining issues of entitlement to service connection for a lumbar spine disorder and an increased rating for the service-connected right knee disability. While the case was in remand status, in a July 2015 rating decision, the RO granted service connection for a left knee disability and assigned an initial 10 percent disability rating, effective February 21, 2008. The RO also granted service connection for a spine condition and assigned an initial 10 percent disability rating, effective October 5, 2009. The grant of service connection for a left knee disability and a spine disability constitutes a full award of the benefits sought on appeal with respect to those claims. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the appellant has initiated an appeal of the initial ratings or effective dates assigned. Thus, those issues are not before the Board. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A review of the available clinical evidence shows that the appellant underwent a total right knee replacement on March 16, 2010, by Dr. B. at St. Charles Hospital in Bend, Oregon. See e.g. March 2010 VA medical examination report. According to the appellant, he subsequently developed a staph infection at the surgical site, requiring a revision of the surgery in August 2010 at the same facility. See e.g. November 2010 statement from the appellant and June 2014 hearing testimony. The record indicates that the RO has rated the appellant's service-connected right knee disability under the rating criteria pertaining to arthritis and limitation of motion. See e.g. 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, and 5261. Under VA's Rating Schedule, however, a 100 percent disability rating is assigned for one year following the implantation of a knee prosthesis. Thereafter, the minimum disability rating which may be assigned, post-knee replacement, is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The record in this case indicates that the RO has not yet considered application of Diagnostic Code 5055. To avoid prejudice to the appellant, initial RO consideration is necessary. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the Board finds that additional evidentiary development is required prior to further consideration. Clinical records corresponding to the appellant's March 2010 knee replacement surgery, as well as the August 2010 revision, are not currently of record. Pursuant to the Board's February 2015 remand instructions, the RO contacted the appellant in a March 2015 letter and asked him to submit or authorize the release of medical records associated with his knee replacement surgery. In a June 2015 letter, the appellant responded that "I have no idea what you want from me. I have released at least 20 times." The Board advises the appellant, however, that the record contains no indication that he has previously signed an authorization to release records corresponding to his 2010 right knee surgeries to VA. The Board notes that it is the responsibility of the appellant to submit records of treatment in support of his claim. 38 U.S.C.A. § 5107(a) (West 2014); 38 C.F.R. § 3.159(c) (2015). The Board further advises the appellant that, although VA has a duty to assist him in the development of his claim, that duty is not "a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Rather, the appellant also has an obligation to assist in the adjudication of his claim. "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 195. For these reasons, the appellant is advised that he must provide the appropriate information and authorization to allow VA to assist him in obtaining records corresponding to his knee replacement surgeries or he should submit copies of those records himself. Given the nature of the issue on appeal, these records are highly relevant to the claim. The Board also notes that the appellant has raised the issue of entitlement to TDIU. See e.g. October 2009 statement; March 2010 VA examination report. A claim for a total rating based on individual unemployability, either expressly raised by the appellant or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO has not yet considered this issue in the first instance. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Therefore, the AOJ should develop a claim for TDIU. Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary information and authorization from the appellant, the AOJ should request clinical records associated with his March 2010 total right knee replacement and August 2010 revision by Dr. B. at St. Charles Hospital in Bend, Oregon, as well as any follow-up medical care. See June 2014 hearing testimony. 2. After the above action has been completed, the appellant should be scheduled for an appropriate medical examination to determine the current severity and manifestations of his service-connected right knee disability. Access to records in the appellant's electronic VA claims folders should be provided to the examiner. After reviewing the record and examining the appellant, the examiner should report all signs and symptoms necessary for rating the disability, including the range of motion in degrees. The examiner should indicate whether the appellant has prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. He or she should also indicate whether the appellant has intermediate degrees of residual weakness, pain, or limitation of motion and whether there is any ankylosis, loss of extension, or malunion or nonunion of the tibia and fibula. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the AOJ may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 4. After the actions above have been completed, and after conducting any additional development deemed necessary, the AOJ should readjudicate the claims, considering all the evidence of record. If any benefit sought remains denied, the appellant and his representative should be furnished a supplemental statement of the case, including citations to 38 C.F.R. § 4.71a, Diagnostic Code 5055, and given the appropriate opportunity to respond. 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 2014). _________________________________________________ J.W. ZISSIMOS 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).