Citation Nr: 1317468 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 08-21 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a disability rating higher than 10 percent for patellofemoral arthritis of the right knee. 2. Entitlement to a disability rating higher than 10 percent for patellofemoral arthritis of the left knee. 3. Entitlement to a compensable disability rating for left leg disability. 4. Entitlement to a compensable disability rating for right leg disability. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to May 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2007 and July 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2009, a Travel Board hearing was held before a Veterans Law Judge; a transcript of the hearing is included in the claims file. The Board remanded the matter of TDIU in October 2009 and June 2011 for additional development. The Veterans Law Judge who held the April 2009 hearing is no longer with the Board; the case has been reassigned to the undersigned Veterans Law Judge. The Veteran was offered the opportunity to testify at another hearing yet declined the offer in a March 2013 statement. 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 On review of the record, the Board finds that these matters must be remanded for evidentiary development. Regarding the ratings for patellofemoral arthritis of both knees and left and right leg disabilities, a July 2011 rating decision granted service connection (pursuant to the Board's June 2011 decision) and assigned ratings for each disability. In a September 2011 statement, the Veteran clearly expressed disagreement with this decision. The filing of a timely notice of disagreement initiates the appeal process. Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). As a statement of the case in the matter has not yet been issued, a remand for such action is required. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran contends that he is unemployable not only due to his service connected disabilities themselves, but also due to the pain medications he has been prescribed to treat these disabilities. He contends that these medications further impair his mental and physical capabilities. On March 2012 VA treatment, his medications were noted to include Cyclobenzaprine, Diclofenac, Divalproex DR, Gabapentin (noted as specifically prescribed for his leg pain), Rosuvastatin, and Ziprasidone (Geodon). An August 2011 VA examiner opined on the Veteran's employability regarding his service-connected disabilities but did not offer any opinion as to the impact of the medications as well. A medical opinion regarding the impact of the Veteran's service-connected disabilities, including the medications prescribed to treat them, on his ability to obtain and follow substantially gainful employment is needed to decide the issue of a total compensation rating based on individual unemployability. Friscia v. Brown, 7 Vet. App. 294 (1995). Finally, a review of the claims file (as well as Virtual VA) reflects that the most recent VA treatment records in evidence are from March 2012. The Veteran stated in a September 2011 statement that he seeks treatment with his primary care physician at least every 6 months, indicating that there may be outstanding treatment records. VA treatment records are constructively of record and must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a Statement of the Case on the issues of increased ratings for patellofemoral arthritis of the right knee, patellofemoral arthritis of the left knee, and left leg and right leg disabilities. The Veteran should be advised that these matters will only reach appellate status if he timely perfects an appeal by submitting a substantive appeal. If he does so, the matters should be returned to the Board for appellate consideration. 2. The RO should secure for the record copies of the complete updated clinical records (any not already associated with the claims file) of all VA evaluations and treatment the Veteran has received for his service-connected disabilities since March 2012. 3. The RO should then arrange for the record to be forwarded to an appropriate physician for review and an advisory medical opinion regarding the impact of all of the Veteran's service connected disabilities, including the medications prescribed to treat these disabilities, on his employability. The consulting provider should: (a) Discuss the functional limitations associated with, and expected impact on employment resulting from, the Veteran's service-connected disabilities (and medications prescribed to treat them) cumulatively. (b) Identify the types of employment, if any, that would not be inconsistent with/precluded by the cumulative functional limitations due to the service-connected disabilities and treating medications and the types of employment, if any, that remain feasible despite the cumulative effect of the service-connected disabilities. An explanation for any opinions given should be provided. If the consulting provider indicates that the opinions sought cannot be offered without another examination of the Veteran, the RO should arrange for such examination. 4. After all necessary development has been accomplished, the RO should review the expanded record and readjudicate the claim for TDIU. If TDIU is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded an appropriate opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate consideration. 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). _________________________________________________ ALAN S. PEEVY 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).