Citation Nr: 1314686 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-30 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent prior to October 18, 2010, for chondromalacia patella of the left knee with degenerative joint disease. 2. Entitlement to an evaluation in excess of 30 percent as of December 1, 2011, for residuals of a total left knee arthroplasty. 3. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from October 1973 to September 1977 and from February 1989 to March 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified before the Board at an August 2010 hearing conducted via videoconference. A transcript of the hearing is of record. In light of the Veteran's contentions that his service-connected disabilities render him unemployable, the Board has amended the issues on appeal to include entitlement to TDIU as reflected above. Rice v. Shinseki, 22 Vet. App. 447 (2009). This case was previously before the Board in January 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The case is once again before the Board for appellate consideration of the issue on appeal. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). 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 Following the January 2011 remand, the Veteran reported that he had applied for Social Security Administration (SSA) disability benefits, in part, due to his left knee disability currently on appeal. However, records related to the Veteran's SSA disability claim are not part of the record. Even though the Veteran has explicitly stated that he receives medical treatment only at VA facilities, the Board notes the SSA file may include additional medical examinations or findings related to his SSA disability claim that have not yet been obtained by VA. In order to ensure that the appellant's claim is adjudicated on the basis of a complete evidentiary record, the SSA award letter, if any, and related evidence should therefore be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also 38 C.F.R. § 3.159(c)(2). As a final note, in addition to asserting he is unable to obtain or maintain gainful employment, the Veteran has also filed claims for increased evaluations for his right knee and lumbar spine disabilities. See December 2011 and June 2012 statements. An August 2012 notification letter located in the Virtual VA record reflects that a claim for an increased rating for a back disability was denied. The rating decision is not of record in either the paper or virtual file. Appropriate action should be taken to locate the outstanding document, and associate such with the record. There is no indication that the right knee disability claim has been reviewed. This increased evaluation for a right knee disability should be adjudicated by the AOJ in the first instance. See Godfrey v. Brown, 7 Vet. App. 398 (1995). The Veteran's pending claim for TDIU is impacted by the outcome of his new claim for an increased evaluation for a right knee disability and therefore, is inextricably intertwined. 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). Therefore, the TDIU claim must be remanded to the AOJ in accordance with the holding in Harris to allow the AOJ to fully develop and adjudicate any outstanding claims. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the issue of entitlement to an increased evaluation for his right knee disability. All appropriate procedures should then be followed. Locate and associate with the paper or virtual file, the rating decision denying an increased rating for a lumbar spine disability. See August 17, 2012 notification letter. 2. Request and obtain any determination pertinent to the Veteran's claim for SSA disability benefits, as well as any medical records relied upon concerning that claim. All efforts to obtain such records must be documented and associated with the claims file. VA must attempt to obtain records from a Federal department agency until it is reasonably certain that the records do not exist or that any further efforts to obtain the records would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e)(1). 3. Review the expanded record and accomplish any other development deemed necessary with regards to the Veteran's claim for TDIU, to include medical examinations and/or referral for extraschedular consideration. 4. After completing the above, readjudicate the Veteran's claims of entitlement to an increased evaluation for his service-connected left knee disability and entitlement to TDIU benefits. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). _________________________________________________ K. PARAKKAL 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).