Citation Nr: 20007609 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 19-27 681 DATE: January 29, 2020 REMANDED The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected lumbar spine disability is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected right hip limitation of extension is remanded. The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected right hip limitation of flexion is remanded. The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected right hip limitation of adduction is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 10 percent for service-connected right ankle instability is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected total right knee replacement, prior to May 13, 2019, is remanded. The appeal as to the claim of entitlement to a total disability evaluation based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from October 1961 to July 1962. His service was under honorable conditions. In a June 2019 rating decision, the RO increased the 10 percent rating to 100 percent, effective May 13, 2019, for the service-connected total right knee replacement (previously rated as degenerative arthritis of the right knee). An evaluation of 30 percent is assigned from July 1, 2020. During the course of contemporary private treatment and in a July 2019 opinion from P.H., MD, the Veteran raised an informal claim of entitlement to a TDIU due to his service-connected disabilities. The issue of whether entitlement to a TDIU is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected lumbar spine disability. See argument Below at 6 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected right hip limitation of extension. See argument Below at 6 3. Entitlement to an initial compensable evaluation for service-connected right hip limitation of flexion. See argument Below at 6 4. Entitlement to an initial compensable evaluation for service-connected right hip limitation of adduction. See argument Below at 6 5. Entitlement to an evaluation in excess of 10 percent for service-connected right ankle instability. See argument Below at 6 6. Entitlement to an initial evaluation in excess of 10 percent for service-connected total right knee replacement, prior to May 13, 2019. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this regard, the Board notes that the Veteran was most recently afforded a VA examination to assess the severity of his service-connected lumbar spine, right hip, right ankle, and right knee disabilities, in May 2018, approximately twenty months ago. In subsequent statements and private outpatient treatment, the Veteran asserted that his service-connected lumbar spine, right hip, and right knee disabilities worsened; specifically, that he experienced increased pain and difficulty walking, reduced range of motion, and consistent problems with balance, suggesting his symptoms may have increased in severity since the May 2018 VA examination. Further, in a January 2020 statement, the Veteran’s representative reiterated that the Veteran’s symptoms had worsened since the aforementioned examination. In light of the foregoing, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected lumbar spine, right hip, right ankle, and right knee disabilities. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). In addition, with respect to the Veteran’s claims, VA has a duty to assist the Veteran by obtaining Social Security Administration (SSA) records identified by the Veteran. In this regard, a July 2019 inquiry shows that the Veteran is currently in receipt of SSA disability benefits. Thus, the AOJ must obtain complete SSA records, and associate them with the record. 38 C.F.R. § 3.159 (2019). 7. Entitlement to a TDIU due to service-connected disabilities. As noted above, the Veteran raised an informal claim of entitlement to a TDIU. With respect to symptoms due to his service-connected lumbar spine, right hip, right ankle, and right knee disabilities, the Veteran reported symptoms of increased pain, decreased range of motion, and difficulty balancing. In addition, in a July 2019 letter, the Veteran’s private physician reported that the Veteran could not sit or stand for a long period of time due to symptoms of chronic pain, as a result of his service-connected disabilities. Further, the private physician indicated that the Veteran was not employable. The issue of whether entitlement to a TDIU is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice, 22 Vet. App. 447 (2009). As the RO has not yet considered the issue of TDIU, the issue must be remanded to the RO for such consideration. Further, as the Veteran’s claim of entitlement to increased evaluations for his lumbar spine, right hip, right ankle, and right knee disabilities are being remanded for additional development by the AOJ, they are directly applicable to the question of employability, the issue of TDIU is also remanded as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely ties together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following actions: 1. This case has been advanced on the docket. Provide the Veteran appropriate notice with respect to the claim of entitlement to TDIU benefits that includes an explanation as to the information or evidence needed to substantiate a claim for a TDIU on a schedular and extraschedular basis. 2. Provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO, for the purpose of obtaining a complete work history. 3. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include complete SSA records. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 4. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected lumbar spine disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the lumbar spine disability, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected right hip disabilities. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the right hip disabilities, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 6. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected right ankle disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the right ankle disability, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 7. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected right knee disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the right knee disability, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 8. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 9. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.