Citation Nr: 1314310 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-40 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to a rating in excess of 20 percent for osteochondritis dissecans with arthritis, right knee postoperative. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in May 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board's review of the record indicates that a remand of the appeal is necessary prior to further adjudication of the claims. The relevant medical evidence includes the report of an April 2009 VA examination and an April 2009 evaluation by the Veteran's private treating physician. There is no other relevant medical evidence of record. The Board notes that the Veteran did not return the VA Form 21-4142, Authorization and Consent to Release Information to VA, for private treatment records, nor did he complete the application form for TDIU. The Board observes that the law provides that, while VA is obligated to assist a claimant in the development of a claim, there is no duty on VA to prove the claim. As the Court stated in Wood v. Derwinski, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." 1 Vet. App. 190, 193, reconsidered, 1 Vet. App. 406 (1991); see also Wamhoff v. Brown, 8 Vet. App. 517 (1996). Nevertheless, as the most recent medical evidence is four years old, the Board finds that remand is necessary to ensure that the Board has an accurate view of the Veteran's current state of disability. Therefore, the Board remands the appeal so that an additional VA examination may be scheduled to assess the current nature and severity of the Veteran's service-connected right knee disability. Additionally, the Board notes that in his October 2009 VA Form 9, the Veteran reported that his treating physician had recommended a knee replacement. Accordingly, he should again be given the opportunity to identify relevant treatment records, VA and private, and to submit the records or a VA Form 21-4142, Authorization and Consent to Release Information to VA, if necessary, so that VA may obtain them. As for the TDIU claim, such claim is inextricably intertwined with the increased rating claim. The Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As the Veteran's eligibility for TDIU is determined by the rating evaluation assigned to his service-connected disability, the TDIU claim must be remanded in conjunction with the increased rating claim. Thus, the case is REMANDED for the following action: 1. Request that the Veteran identify all VA and private treatment records that relate to his right knee disability. He should be advised that he may submit the records directly to VA, or complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for any private treatment records he wishes to be added to his claims file. The Veteran should again be provided a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployabiity, and requested to complete and return the form to the RO. All requests and responses, positive and negative, must be documented in the claims file. 2. Schedule the Veteran for a VA orthopedic examination to assess the current nature and severity of his right knee disability. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner should perform all necessary diagnostic tests, and report all clinical manifestations in detail. The examiner should note the Veteran's subjective complaints both in the claims file and at the examination and opine as to whether such complaints are consistent with objective clinical findings. The examiner is also asked to specifically opine as to whether it is at least as likely as not that the service-connected right knee disability precludes the Veteran from maintaining substantially gainful employment consistent with his educational attainment and occupational experience, including as a postal service carrier and supervisor. 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ U. R. POWELL 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).