Citation Nr: 1302541 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 06-20 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1969 to September 1971 and from April 1974 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on July 13, 2012, which vacated a July 2011 Board decision and remanded the issue on appeal for additional development. The appeal arose from a February 2005 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a hearing before a Decision Review Officer at the RO in November 2006. The Board notes the Court has held that a claim for a TDIU is generally a rating theory and "not a separate claim for benefits." Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Court, however, noted that bifurcation of a claim is generally a matter within VA discretion. Id. at 455, n. 7. The Court has also held that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). The issue of entitlement to a TDIU is the only matter for appellate review in this case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND In its July 2012 order the Court incorporated the terms of a joint motion for remand including that additional VA efforts were required to obtain information related to the Veteran's previous employment at Kentucky Fried Chicken and Manor Care Nursing Home and to provide an additional VA examination to reassess the Veteran's service-connected left knee disability. Therefore, additional development is required. The Board notes that service connection is presently in effect for duodenal ulcer status post laparotomy with recurrent ulcers, rated as 30 percent disabling; residuals of left knee injury with arthritis and limitation of motion, rated as 20 percent disabling; and residuals of fracture of the right ankle with degenerative joint disease, rated as 20 percent disabling. The combined service-connected evaluation is 60 percent. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts must be taken to obtain information/records related to the Veteran's previous employment at Kentucky Fried Chicken and Manor Care Nursing Home. Reasonable efforts generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. If after reasonable efforts are taken and the records cannot be obtained, the Veteran should be provided oral or written notice of that fact. Such notice must identify the records VA was unable to obtain, explain the efforts taken to obtain the records, describe any further action VA would take regarding the claim, and notify the Veteran that he is ultimately responsible for providing the evidence. 2. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. 3. The Veteran should be scheduled for an appropriate VA examination for an opinion as to the current nature and extent of his service-connected residuals of left knee injury with arthritis and limitation of motion. The examiner should address whether the disability, either by itself or in conjunction with his other service-connected disabilities, results in a marked interference with employment or an inability to secure or follow a substantially gainful occupation. Range of motion and all indicated tests and studies are to be performed. In connection with the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, history provided by the Veteran, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. After completion of the above and any additional development deemed necessary, the RO/AMC should reassess the assigned rating for the service-connected residuals of left knee injury with arthritis and limitation of motion and review the issue on appeal. All applicable laws and regulations should be considered. If the benefit on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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 Supp. 2012). _________________________________________________ BARBARA B. COPELAND 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) (2012).