Citation Nr: 1317799 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 01-06 028 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected right knee disability, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from February 1987 to December 1987. He also served as a member of the Army National Guard of Arkansas. This appeal to the Board of Veterans Appeals (Board) arose from August 2000 and January 2001 rating decisions. In the August 2000 rating decision, the RO found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a left knee condition as secondary to the right knee condition (see August 11, 2000 rating decision). However, the RO, without explanation, later characterized this issue as a de novo claim for secondary service connection (see, e.g., January 11, 2001 rating decision). In both the August 2000 and January 2001 decisions, the RO also denied the Veteran's claim for a compensable rating for his right knee disability. The Veteran filed a notice of disagreement (NOD) in January 2001, and the RO issued a statement of the case (SOC) in April 2001. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in June 2001. In May 2002, the Board remanded the claims on appeal to the RO for additional development-specifically, to schedule the Veteran for a Board video-conference hearing before a Veterans Law Judge. The Veteran failed to report for his scheduled hearing. In August 2003, the Board reopened the claim for secondary service connection for a left knee disability, but remanded to the RO the claim for secondary service connection, on the merits, along with the claim for a compensable rating for the right knee disability, for additional action. Following completion of the development requested, the RO continued to deny the remanded claims (as reflected in a February 2005 supplemental SOC (SSOC)). In a June 2005 decision, the Board denied service connection for left knee disability, as secondary to service-connected right knee disability, and remanded the claim for a compensable rating for the right knee disability for further development. The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2006 Order, the Court granted a joint motion (filed by representatives of both parties), partially vacating the portion of the June 2005 decision in which the Board denied service connection for a left knee disability, and remanding this matter to the Board for further proceedings consistent with the joint motion. In July 2006, the Board remanded the claim for service connection for left knee disability, as secondary to service-connected right knee disability, to the RO, via the Appeals Management Center (AMC) in Washington, D.C., to obtain full medical findings to resolve the claim on appeal. Regarding the claim for an increased rating for the right knee disability, the Board noted that the RO had not completed the actions pertinent to that claim that the Board had previously requested in the June 2005 remand and that, once the RO completed those actions, and returned the matter to the Board, the Board would render its decision on that claim. After completing some of the requested action, the AMC continued to deny service connection for left knee disability, claimed as secondary to a service-connected right knee disability (as reflected in an August 2007 SSOC) and returned the matter to the Board for further appellate consideration. In December 2007, the Board again remanded the claims on appeal to the RO, via the AMC, for further development. In a June 2008 rating decision, the RO in Huntington, West Virginia granted service connection and assigned an initial 10 percent rating for chondromalacia patella with degenerative changes, left knee, effective June 5, 2000. As the Veteran did not appeal the effective date or the rating assigned for left knee disability, the award of service connection was deemed to constitute a full grant of the benefit sought with respect to the left knee. Also in June 2008, the RO granted a higher, 10 percent rating for chondromalacia patella with degenerative changes of the right knee, effective June 5, 2000 (the date of the Veteran's claim for increase), but denied a rating in excess of 10 percent for the Veteran's right knee disability (as reflected in a June 2008 SSOC). Thereafter, this matter was returned to the Board for further appellate consideration. In December 2008, the Board again remanded the claim for a higher rating for right knee disability to the RO, via the AMC, for further action, to include additional development of the evidence. After completing the requested development to the extent possible, the AMC continued to deny the claim (as reflected in a March 2010 SSOC) and returned this matter to the Board for further consideration. In May 2010, the Board denied the claim for a higher rating for right knee disability. The Board also characterized the appeal as encompassing the matter of the Veteran's entitlement to a TDIU for service-connected right knee disability, and remanded this matter to the RO, via the AMC, for further action, to include additional development of the evidence. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). After completing the requested development, the AMC denied the claim (as reflected in a December 2010 SSOC) and returned the matter remaining on appeal to the Board for further appellate consideration. In March 2011, the Board denied the TDIU claim. The Veteran, in turn, appealed the Board's decision to the Court. In August 2012, the Court vacated the Board's decision and remanded the matter to the Board for further proceedings consistent with the March 2011 single-judge Memorandum Decision. In January 2013, the Veteran submitted additional evidence along with a waiver of the Veteran's right to have this evidence initially considered by the RO. See 38 C.F.R. § 20.1304 (2012). The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. A review of the documents in such file reveals copies of records of adjudicatory actions pertinent to the matter on appeal. For the reasons expressed below, the matter remaining on appeal is being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in a January 2013 letter, the Veteran appears to be raising a claim of entitlement to service connection for a back disability as secondary to his service-connected bilateral knee disability. As the claim has not yet been addressed by the RO, such matter is not before the Board, and is thus referred to the RO for appropriate action. REMAND In light of points raised in the Court's memorandum decision, and the Board's review of the claims file, further RO action on the claim on appeal is warranted. In the May 2010 remand, the Board ordered, among other things, that the RO assist the Veteran in obtaining any additional evidence he identified. Additionally, the Veteran was to be informed that he had a full year to respond to any correspondence. In a May 2010 letter, the RO informed the Veteran that he had a full year to submit any additional evidence, but that his claim could be decided before that time. The December 2010 SSOC reflects the RO's denial of the Veteran's TDIU claim based on the Veteran's non-response. However, in a February 2011 letter, received by the AMC on February 28, 2011, the Veteran stated that he was enclosing a copy of findings from his MRI of his knee taken on February 16, 2011 (the findings are not associated with the claims file). He also stated that further records should be obtained through the Charles George VA Medical Center (VAMC) in Asheville. There is no indication that the AMC sought to obtain the VA treatment records and furthermore, as noted, in March 2011, the Board denied the Veteran's TDIU claim. In the March 2011 Memorandum Decision, the Court determined that the Board failed to provide an adequate statement of reasons and bases regarding the RO's compliance with the duty to assist in obtaining records and compliance with the May 2010 Board remand directives. Moreover, further review of the Veteran's file, to include Virtual VA, discloses that only VA treatment records dated through August 2010 have been associated with the claims file. Accordingly, further RO action to obtain all outstanding VA records is warranted. The Board is cognizant that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should request from the Charles George VAMC, all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since August 2010, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The Board also notes that, in a June 2013 statement, the Veteran reported that the Social Security Administration (SSA) has deemed him 100 percent disabled and unemployable. Although SSA records are not controlling in VA claims, here, such records may be relevant to the Veteran's TDIU claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Accordingly, the Board concludes that a remand is needed in order for VA to obtain the Veteran's SSA records. Finally, to ensure that all due process requirements are met, and that the record is complete, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the TDIU claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103 , 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA (to include arranging for the Veteran to undergo further examination or otherwise obtaining a medical opinion , if appropriate) prior to adjudicating the claim for a TDIU due to the service-connected right knee disability on appeal. In adjudicating the claim, the RO should specifically consider whether the procedures for assigning an extra-schedular TDIU, pursuant to 38 C.F.R. § 4.16(b) are invoked. The RO's adjudication should also include consideration of all evidence added to the claims file since thr RO's last adjudication of the claim-to include, for the sake of efficiency, evidence submitted directly to the Board in January 2013 (notwithstanding the waiver of initial RO consideration of the evidence). Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Charles George VAMC, all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated since August 2010. Follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo further examination, or otherwise obtaining a medical opinion, if appropriate), readjudicate the claim remaining on appeal in light of all pertinent evidence (to include all that added to the claims file since the RO's last adjudication) and legal authority (to include 38 C.F.R. § 4.16(b)). 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for the determination, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).