Citation Nr: 1304077 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 07-30 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating greater than 20 percent for residuals of injury to the left knee, status post partial meniscectomy. 2. Entitlement to a compensable rating for residuals of injury to the left hip, prior to April 20, 2010. 3. Entitlement to a rating in excess of 10 percent for residuals of injury to the left hip, from April 20, 2010. 4. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2010, a hearing was held before the undersigned Veterans Law Judge. In February 2011, the Board remanded this case. In a May 2012 rating decision, an increased rating of 10 percent was assigned for residuals of the left hip injury, from April 20, 2010. The Board notes that the United States Court of Appeals for Veterans Claims (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of a higher rating remains in appellate status. 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. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. In the Board's prior remand decision, the Board determined that additional development was necessary. Specifically, the Board indicated that records of the Social Security Administration (SSA); of Dr. Crouch and Dr. Vakharia, two private physicians; and of the Birmingham, Alabama VA Medical Center, should be obtained. In addition, the Board requested that the Veteran be afforded a VA examination, to include an opinion regarding his employability. In response, the SSA records and the VA medical records were obtained. In addition, the requested VA examination was conducted in April 2011, and a medical opinion regarding employability was provided. The record does not reflect the private records were obtained. Further, the May 2012 supplemental statement of the case (SSOC) did not refer to many of the newly obtained records, but rather referred to an April 2010 examination which was already of record at the time of the Board's February 2011 remand decision. The findings in that medical report are not the same as the more recent April 2011 report and no opinion regarding employability was furnished in the earlier VA examination. The Board notes that at the time that the Board rendered the remand, the claims file contained three volumes. Currently, there are six volumes as well as documents in VA's Virtual VA System (although all medical records are in the claims file). It appears that the readjudication of the claims was performed without the benefit of review of the additional three claims file and any virtual records. The SSA records, VA records, and the VA examination report are contained in claims file volumes four, five, and six, with the VA examination report located in volume six, at the current time. However, the May 2012 SSOC and a May 2012 rating decision are both contained in the third claims file volume. In light of the foregoing, the Board finds that another attempt should be made to secure the private records and any updated records from the Birmingham, Alabama VA Medical Center. An addendum opinion on the matter of employability should also be obtained. As the case must be remanded, the Veteran's complete VA Vocational Rehabilitation file should be requested. Thereafter, the RO/AMC should reconsider the claims in light of all evidence added to the record from the date of the Board's last February 2011 remand decision. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's treatment records from the VA Medical Center in Birmingham, Alabama, dated since February 2011. 2. Make arrangement to obtain any existing additional treatment records from Dr. Couch and Dr. Vakharia. The Veteran should be contacted regarding the possible existence of any additional treatment records other than the September 2004 and October 2004 statements to the Disability Determination Service. If additional records do exist, the Veteran should be asked to provide the necessary identifying information needed to locate the records and to submit all relevant records that he has in his possession, to include the records referred to in his October 2005 statement. 3. Make arrangements to obtain the Veteran's VA Vocational Rehabilitation file. 4. Thereafter, return the claims files to the April 2011 VA examiner(s). The examiner(s) should be asked to provide an opinion as to the following: Based on review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (i.e., residuals of an injury to the left knee, residuals of an injury to the left hip, degenerative joint disease of the right knee, nasal impairment due to trauma, multiple scars on the face and left upper and lower extremities, tinnitus, and hearing loss) IN THE AGGREGATE, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by his nonservice-connected disabilities. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If, for whatever reason, the April 2011 examiner(s) is no longer available or able to provide this additional comment (addendum opinion), then obtain this additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested medical comment can be provided just with review of the c-files. 5. Finally, readjudicate the claims on appeal in light of all of the evidence of record, particularly since the Board's February 2011 remand decision, and to specifically include the April 2011 VA examination report. If any issue remains denied, the Veteran should be provided with an SSOC as to any issue remaining on appeal and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).