Citation Nr: 0813273 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 03-36 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a left shoulder condition. 2. Entitlement to service connection for a right knee condition. 3. Entitlement to an initial disability rating in excess of 10 percent for status post left knee arthroscopic surgery with partial anterior cruciate ligament (ACL) tear. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service- connected disabilities. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Harrigan, Associate Counsel INTRODUCTION The appellant served on active duty from June 1976 to June 1979 and January 2002 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a January 2003 rating decision, the RO granted service connection for status post left knee arthroscopic surgery with partial ACL tear at a 10 percent disability rating and denied service connection for adjustment disorder with mixed emotional features of anxiety and depression claimed as anxiety, a left shoulder condition and a right knee condition. In November 2003, the veteran perfected an appeal on these issues. In an August 2006 rating decision, the RO granted service connection for major depressive disorder, recurrent, severe without psychotic features. As such, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). In a January 2007 rating decision, the RO denied entitlement to a TDIU rating. In October 2007, the veteran perfected an appeal of the denial of a TDIU rating. In a statement dated on February 26, 2004 and received that same day, the veteran stated that he wished to cancel his hearing. His request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2007). The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND This case must be remanded to comply with VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The veteran contends that he is eligible for an initial disability rating in excess of 10 percent for his left knee disability and for service connection for left shoulder and right knee disabilities. The veteran was denied a higher disability rating for his service-connected left knee disorder because the evidence of record did not show his symptomatology warranted a higher rating. He was denied service connection for left shoulder and right knee disorders on the basis that the evidence did not show that the veteran had a current left shoulder or right knee condition that occurred in service. The duty to assist includes obtaining medical and employment records and providing a VA medical examination or a medical opinion when necessary for an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). The Board notes that the veteran submitted a statement dated in December 2007 granting VA permission to obtain further orthopedic treatment records from a private examiner. The veteran has not indicated that he wishes to waive AOJ review of these records. Since these records may contain evidence relating to the veteran's claims on appeal, this case must be remanded in order for the AOJ to obtain these treatment records and readjudicate the veteran's claims on the basis of this additional evidence. With respect to the veteran's TDIU claim, the Board notes that the veteran is service connected at 70 percent for severe, recurrent major depressive disorder. The veteran contends that his service connected major depressive disorder renders him unable to work. A July 2004 VA mental disorders examination report shows that the examiner opined that the veteran's signs and symptoms of his major depressive disorder represent impairment for employment and social functioning. The examiner requested that a social and industrial field study be conducted without any previous notification to the veteran. The examination report shows that this study was completed and reviewed on August 6, 2004; however, the study is not in the claims file. On remand, the AOJ should attempt to obtain a copy of the social and industrial field study conducted in conjunction with the veteran's July 2004 VA mental disorders examination. A May 2006 mental disorders examination report reflects the examiner's opinion that the veteran's signs and symptoms of his major depressive disorder are seriously interfering with his employment and social functioning. After the receipt of the social and industrial field study, if available, the veteran's claims file should be returned to one of the examiners who performed the veteran's July 2004 or May 2006 VA mental disorders examination in order for an opinion to be rendered concerning the veteran's inability to secure or follow a substantially gainful occupation as a result of a service-connected disability, specifically, his major depressive disorder. If neither of these examiners is available, the claims file should be reviewed by an appropriate specialist. Accordingly, the case is REMANDED for the following action: 1. The AOJ should attempt to obtain the private orthopedic treatment records from the health care provider the veteran identified in his December 2007 statement. In addition, the AOJ should attempt to obtain the social and industrial field study conducted in conjunction with the veteran's July 2004 VA mental disorders examination. The AOJ should also obtain all VA medical records for treatment of the veteran's service-connected psychiatric disorder since January 2007. If records are unavailable, please have the health care provider so indicate. 2. After completion of number 1 above, the veteran's claims file should be returned to one of the examiners who performed the July 2004 or May 2006 VA mental disorders examination in order for an opinion to be rendered as to whether it is at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability, specifically, his major depressive disorder. If neither of these examiners is available, the claims file should be reviewed by an appropriate specialist. The claims file, this remand, the field and survey study, if available, and treatment records must be made available to the examiner for review of the pertinent evidence in connection with the examination, and the report should so indicate. 3. After the receipt of any additional treatment records, the AOJ should readjudicate the appellant's claims, to include the claim for a TDIU. If any determination remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case and be afforded an opportunity to respond before the case is returned to the Board for further review. The purposes of this remand are to comply with due process of law and to further develop the appellant's claim. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant and his representative have 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 Supp. 2007). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).