Citation Nr: 1617724 Decision Date: 05/03/16 Archive Date: 05/13/16 DOCKET NO. 08-29 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for patellar tendonitis, status post stress fracture of the left knee. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in part, continued 10 percent disability evaluation for the Veteran's patellar tendonitis of the left knee. In March 2010, the Veteran presented testimony in a central office hearing before the undersigned. A copy of the transcript has been associated with the record. During the March 2010 hearing, the Veteran and his representative raised the issue of service connection for left knee meniscus tear, secondary to service connected patellar tendinitis, status post stress fracture of the left knee, which has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board noted that it did not have jurisdiction over this issue, and referred it to the AOJ for appropriate action. On review of the claims file and e-folders, it does not appear that the RO sent the Veteran a development letter concerning this issue. This issue is again referred to the AOJ for appropriate development. Although the AOJ did not certify the issue of TDIU as part of this appeal, in March 2013, the Veteran asserted that his knee disability prevented him from working. Therefore, the Board has jurisdiction to consider the issue of entitlement to a TDIU as part of the claim for an increased rating for patellar tendonitis. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay, an additional remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran states that the current 10 percent evaluation assigned to his left knee disability does not adequately reflect the severity of his impairment. In February 2015, the Veteran and his representative stated that the February 2011 examination was inadequate for rating purposes. The Board remanded the Veteran's claim on appeal in December 2010, and a VA examination was conducted in February 2011. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that with the passage of a full five years, along with a gap in treatment records, the February 2011 VA examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Significantly, in March 2013, the Veteran stated that his left knee symptoms had gotten worse. Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo VA examination to assess the current nature, extent, and severity of his left knee disability. As the outcome of the increased rating claim may have a substantial effect on the merits of his claim for a TDIU, the claim for a TDIU is inextricably intertwined and remanded with the Veteran's claim for an increased rating for left knee tendonitis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a release form for medical records generated by any private health care providers, and if he returns the requested information, attempt to obtain the records if they have not already been obtained. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2015). 2. Attempt to obtain any outstanding VA treatment records that may exist, that have not already been associated with the Veteran's claims file since March 2013. Make as many requests as are necessary to obtain relevant records, and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2015). 3. Then, schedule the Veteran for an appropriate VA examination to determine the severity of his left knee disability. a. In conjunction with the examination, the claims file and a complete copy of this remand must be made available to and reviewed by the examiner. The examination report should indicate that this has been accomplished. b. Taking into account the evidence in the claims file, the examiner must determine the current severity of the Veteran's left knee tendonitis, and its impact on his daily activities and ability to work. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case to the Veteran and his representative and allow the applicable time for response. Then, return the case to the Board. 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). _________________________________________________ D. MARTZ AMES 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).