Citation Nr: 1314893 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-31 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for right knee anterior cruciate ligament (ACL) repair with allograft. 2. Entitlement to an initial compensable evaluation for a scar, right knee, status post-operative surgical repair. 3. Entitlement to an initial compensable evaluation for gastroesophageal reflux disease ("GERD")/hiatal hernia, effective prior to March 4, 2010; and to an evaluation in excess of 10 percent, effective from March 4, 2010. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from August 1974 to September 1982, and from June 1986 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which assigned an increased, 10 percent, rating for the Veteran's service-connected right knee ACL tear, effective May 1, 2008; granted service connection for scar, right knee, status post-operative surgical repair, and assigned a noncompensable rating, effective May 1, 2008; and granted service connection for GERD/hiatal hernia, and assigned a noncompensable rating, effective May 1, 2008. In March 2010, the Veteran appeared at a Travel Board hearing, at the RO, before the undersigned Veterans Law Judge. In January 2011, the Board remanded this matter in order to: (1) obtain VA treatment records for the Veteran dated from August 2009 to the present; (2) ask him to provide information regarding pertinent private treatment he had received and obtain the records thereof; and (3) schedule him for a VA examination regarding the current severity of his service-connected right knee disability, right knee scar, and GERD/hiatal hernia. The record reflects that VA treatment records dated from August 2009 through December 2010 and from August to September 2011 were obtained; the Veteran was provided the opportunity to submit information regarding private treatment for his service-connected disabilities; and in March 2011, he underwent the requested VA examination. Thus, there has been substantial compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board is cognizant of the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the increased rating claim. In this case, the Veteran has not argued, and the record does not reflect, that any service-connected disability renders him unemployable. While he indicated at the VA examination in 2011 that his service-connected right knee affected his employment, he has not indicated that his right knee (or other service-connected disability) renders him unemployable. Thus, the Board concludes that a TDIU rating claim has not been raised. For the reasons set forth below, the Veteran's claims must again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Board notes that a review of the claims folder is negative for a VA Form 646 (Statement of Accredited Representative in Appealed Case), or equivalent, from the Veteran's authorized representative, the Pennsylvania Department of Military and Veterans Affairs (PDMVA), following the Board's January 2011 remand. The Veteran is entitled to representation at all stages of an appeal. See 38 C.F.R. § 20.600 (2012). VA policy is to afford a representative the opportunity to submit a VA Form 646 after completion of the development directed in a remand and prior to returning an appeal to the Board. See M21-1MR, Part 1, Chapter 5, Section F, Para. 27 (Aug. 19, 2005). As the claims folder is negative for a VA Form 646 or an invitation to PDMVA to submit such following completion of the development directed in the January 2011 remand, the case must be remanded to allow the PDMVA to review the claims folder and submit a VA Form 646 or equivalent. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran's authorized representative, the Pennsylvania Department of Military and Veterans Affairs, the opportunity to review the claims folder and submit written argument on the Veteran's behalf, to include, as appropriate, a VA Form 646, or equivalent, in furtherance of the appeal. 2. After the above is completed, as well as any other development deemed necessary, readjudicate the claims. If any decision is adverse to the Veteran, furnish him and his representative a supplemental statement of the case and return the case to the Board. 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). _________________________________________________ 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).