Citation Nr: 1306575 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 05-11 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether denial of Vocational Rehabilitation benefits under Title 38, Chapter 31 of the United States Code was proper. 2. Entitlement to an increased disability rating for service-connected osteochondritis of the right knee, evaluated as 20 percent disabling prior to June 6, 2011. 3. Entitlement to an increased disability rating for service-connected degenerative joint disease of the right knee, evaluated as 10 percent disabling prior to June 6, 2011. 4. Entitlement to an increased disability rating for service-connected right total knee arthroplasy, evaluated as 30 percent disabling from October 1, 2010. 5. Entitlement to an increased initial disability rating for service-connected right hip iliotibial band syndrome with greater trochanter bursitis, currently 10 percent disabling. 6. Entitlement to temporary total evaluation in order to convalesce from eye surgery. 7. Entitlement to an increased rating for keratoconus, currently evaluated as 20 percent disabling, to include restoration of a 30 percent disability evaluation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1983 to January 1984 and from February 1985 to September 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 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 Right Hip In a June 2011 decision, the Board denied an increased rating for the Veteran's service connected hip disability. The Veteran's claim was denied at that time because the Board found the Veteran's disability was not severe enough to meet the criteria for an increased rating under the applicable criteria. However, a June 2012 Joint Motion for Remand (JMR), which was implemented in a June 2012 Court order, found that the Board erred by not considering other relevant criteria. Specifically, the JMR noted that the Board had not considered Diagnostic Codes 5314 and 5317. As such, the JMR found that the prior decision should be vacated and remanded for consideration of these Codes. Furthermore, as it has been over three years since the Veteran's last VA examination for this disability and as the Veteran's right knee has been replaced during the course of this appeal, possibly impacting his service connected hip disability, the Board finds that the Veteran should be provided with a current VA examination for this disability that more accurately addresses its current level of severity. Eye Surgery Further, the Board notes that in November 2011 the Veteran expressed disagreement with an October 2011 decision that denied the Veteran entitlement to a temporary total evaluation to convalesce from eye surgery. Similarly, the Board notes that the Veteran has expressed disagreement with the evaluation he has been assigned for his service connected keratoconus, including the decreased evaluation provided in a May 2012 rating decision. Therefore, under the circumstances, the Board must remand these matters to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Right Knee and Vocational Rehabilitation Finally, the Board points out that, in a June 2011 decision, it remanded the issues of entitlement to increased ratings for osteochondritis of the right knee and degenerative joint disease of the right knee, as well as the issue of denial of Vocal Rehabilitation benefits under title 38, Chapter 31, for further development. A review of the claims file and virtual file indicates that some of this requested development may have been done, specifically, later rating decisions refer to a September 2012 VA knee examination, which is not of record. However, the Veteran's vocational rehabilitation folder has not been associated with the claims file, nor has the Veteran been provided with a Supplemental Statement of the Case. As a copy of the September 2012 VA examination has not been associated with the claims file, the Board cannot determine whether its prior remand directions with regards to that examination were followed. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998) (noting that the Board errs as a matter of law when it fails to ensure compliance with a remand). As such, these claims must be remanded in order to ensure that the prior requested development has been completed. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the names and addresses of any health care providers who have treated him for a right hip disability since 2011. After obtaining any required releases, please secure all records and associate them with the Veteran's claims file. 2. Afford the Veteran an appropriate VA examination for evaluation of his service connected right hip disability. All appropriate tests should be conducted. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should note review of the file. The examiner should specifically perform range of motion testing. Moreover, the examiner should be asked to discuss in detail any muscular manifestations of the Veteran's right hip disability. This should include identification of any affected muscular group. 3. Have the RO readjudicate the claim of entitlement to an increased initial disability rating for service-connected right hip iliotibial band syndrome with greater trochanter bursitis, specifically taking into account Diagnostic Codes 5314 and 5317. 4. The RO should also issue a Statement of the Case to the Veteran as to matters of entitlement to a temporary total evaluation to convalesce from eye surgery, and an increased rating for the Veteran's service connected keratoconus. If, and only if, the Veteran perfects a timely appeal of either of these claims by filing a VA Form 9 should either of these matters be returned to the Board for appellate review. 5. The RO should ensure all development requests in its June 2011 remand has been undertaken. Specifically, the Veteran's vocational rehabilitation folder should be associated with the Veteran's claims file. Then, all relevant records pertaining to the Veteran's right knee since that time should be associated with the claims folder, to specifically include the report of a September 2012 VA examination. The examiner should specifically discuss pain on motion, range of motion, any findings of instability, and any flare ups of the right knee disability. If the appeal is returned to Board without compliance of the remand directives by the RO/AMC, another remand will likely result. See Stegall, 11 Vet. App. at 271. 4. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a statement of the case or supplemental statement of the case, as appropriate. The Veteran should be given the opportunity to provide written or other argument in response thereto. Each issue for which substantive appeal has been filed should be returned to the Board for further appellate consideration. If the appeal is returned to Board without compliance of the remand directives by the RO/AMC, another remand will likely result. See Stegall, 11 Vet. App. at 271. 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). _________________________________________________ DAVID WIGHT 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).