Citation Nr: 18123928
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-16 755
DATE:	August 3, 2018
REMANDED
Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right knee is remanded.
Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the left ankle is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
REASONS FOR REMAND
In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record.  The Veteran has indicated that he cannot work due in part to his left ankle and right knee disabilities.  See, e.g., May 2012 Veteran statement.  Accordingly, the Board has characterized the issues on appeal to include a claim for entitlement to TDIU.
1. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right knee is remanded.
2. Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the left ankle is remanded.
In the March 2014 notice of disagreement and May 2015 VA Form 9, the Veteran’s statements indicate that his right knee and left ankle disabilities have increased in severity since his June 2012 VA knee and July 2013 VA ankle examinations.  The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right knee and left ankle disabilities.
VA treatment records dated during the appeal period are outstanding, including from April 2011 to November 2011 and from April 2015 to September 2015.  Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal.  A remand is required to allow VA to obtain them.
The evidence of record also indicates there may be outstanding relevant private treatment records. Treatment records from Orthopaedics East, including from Dr. C.B., dated up to October 2010 are of record, as well as treatment records from Dr. S.H. at Physicians East dated up to June 2011.  However, the Veteran’s VA treatment records indicate he continues to see doctors outside VA.  See, e.g., February 2016 VA primary care note.  On remand, any outstanding relevant private treatment records should be obtained.
3. Entitlement to TDIU is remanded.
Finally, because a decision on the remanded right knee and left ankle issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined.  A remand of the claim for TDIU is required.
The matters are REMANDED for the following action:
1. Ask the Veteran to complete a VA Form 21-4142 for any relevant treatment records from Dr. S.H. at Physicians East from June 2011 to the present, and Dr. C.B. at Orthopaedics East from October 2010 to the present.  Make two requests for the authorized records from each provider, unless it is clear after the first request that a second request would be futile.
2. Obtain the Veteran’s VA treatment records for the periods from April 2011 to November 2011, April 2015 to September 2015, and February 2017 to the present.
3. Schedule the Veteran for an examination of the current severity of his right knee and left ankle disabilities.  The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee alone, and due to the left ankle alone, and discuss the effects of the Veteran’s right knee and left ankle on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU.  If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a supplemental statement of the case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.
 
DONNIE R. HACHEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Delhauer, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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