Citation Nr: 1317812 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-25 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased disability rating greater than 10 percent for degenerative changes of the left knee, status post patella dislocation and surgical repair. 2. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service from July 30, 1975 to November 12, 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran subsequently relocated and jurisdiction of his claim was transferred to the RO in Seattle, Washington. That office forwarded his appeal to the Board. This case first reached the Board in May 2012. In a May 2012 Board decision, the Board denied the increased rating issue on appeal. The Board also remanded the issue of entitlement to a TDIU to the RO. However, the Veteran appealed the Board's decision to deny him an increased rating above 10 percent for the left knee to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2012 Court Order and Joint Motion for Partial Remand (Joint Motion) filed by the parties, the Court vacated the Board's decision on the increased rating issue and remanded it for compliance with specific instructions. Specifically, the Joint Motion indicated that the May 2012 Board decision failed to provide adequate reasons and bases for its denial of an increased rating greater than 10 percent for the left knee on a schedular basis, as well as denial of a referral of the increased rating issue on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). For reasons unknown to the Board, the Joint Motion failed to explain why it was specifically remanding the increased rating issue on a schedular basis. However, with regard to vacating the Board's extraschedular analysis of the increased rating issue under 38 C.F.R. § 3.321(b)(1), the Joint Motion explained "it was premature for the Board to decline extraschedular consideration where the record was significantly incomplete in a number of relevant areas probative of the issue of employability [TDIU]." Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Thus, the Joint Motion implied that the extraschedular and TDIU issues on appeal were intertwined, at least in the instant case, as "a complete picture" of the TDIU issue was needed prior to adjudicating the extraschedular issue for the left knee. In other words, since the TDIU issue was remanded by the Board, the extraschedular issue under 38 C.F.R. § 3.321(b)(1) should also have been deferred, pending further development of the TDIU issue. Upon return from the Court, the Board sent a letter to the Veteran in March 2013 informing him that he had 90 days to submit additional evidence with an indication as to whether he desired a remand for the RO to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 20.1304 (2012). In response, in March 2013, the Veteran requested that the Board proceed immediately with readjudication of the appeal after affording his representative the opportunity to submit additional argument. Unfortunately, both issues on appeal are again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Before addressing the merits of the increased rating and TDIU issues, the Board finds that additional development of the evidence is required. First, in May 2012, the TDIU issue was remanded by the Board for additional development. Specifically, the TDIU issue was remanded for the RO/AMC to send the Veteran a VCAA letter pertaining to TDIU; for the RO/AMC to schedule the Veteran for a VA examination for his service-connected disorders to include an opinion on employability; and for the RO/AMC to readjudicate the TDIU claim by way of an SSOC (if denied). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to insure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Court also has clarified that only substantial compliance, and not strict compliance, with the terms of an opinion request are required. D'Aries v. Peake, 22 Vet. App. 97 (2008). The Court routinely vacates Board decisions based on this situation. This fact is especially pertinent in this case since the appeal has already been partially vacated and remanded by the Court. In the present case, a review of the Virtual VA paperless claims processing system confirms that the RO/AMC did in fact secure August 2012 VA examinations addressing employability. However, there is no probative indication that the RO/AMC sent the Veteran a VCAA letter for the TDIU issue or that the RO readjudicated the TDIU issue by way of an SSOC. Therefore, in light of Stegall, supra, the TDIU issue is once again remanded to the RO to ensure compliance with the Board's previous May 2012 remand instructions. Second, VA treatment notes on Virtual VA dated March 2010 and July 2010 indicate that the Veteran was denied Social Security Administration (SSA) disability benefits, but was appealing the denial. In this vein, SSA disability records are not on file and should be obtained before deciding his TDIU and increased rating claims since these records may be relevant to the appeal. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). VA has a duty to make reasonable efforts to assist a claimant to obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c). Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). VA must make as many requests as necessary to obtain "relevant" SSA records, unless a determination is made that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). Moreover, as to a TDIU, the Court has indicated that a SSA determination is critical to a determination of the Veteran's ability to engage in substantially gainful employment. Martin v. Brown, 4 Vet. App. 134, 140 (1993). Thus, a remand is warranted to obtain any outstanding SSA disability records. Third, upon return from the Court, the Board sent a letter to the Veteran in March 2013 informing him that he had 90 days to submit additional evidence with an indication as to whether he desired a remand for the RO to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 20.1304 (2012). In response, in March 2013, the Veteran requested that the Board proceed immediately with readjudication of the appeal after affording his representative the opportunity to submit additional argument. However, a review of the Virtual VA paperless claims processing system reveals additional VA treatment records dated in 2010 and 2011, as well as additional VA examinations dated in August 2012, which are pertinent to the present appeal. The Veteran has not waived his right for the RO to consider this additional evidence. VA regulation also provides that the RO will furnish a Supplemental Statement of the Case (SSOC) to the Veteran, if, pursuant to a prior remand of the Board, the RO develops the evidence, such as the case here. See 38 C.F.R. § 19.31(c) (2012). Therefore, both issues on appeal must be remanded to the RO for readjudication that includes consideration of this additional, pertinent evidence. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a VCAA letter on the issue of entitlement to a TDIU. 2. Request from the SSA all records associated with the Veteran's disability claim(s). Request copies of the disability determination and all accompanying medical records. If no SSA records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 3. The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Thereafter, the RO/AMC must consider all of the evidence of record (including additional VA examinations and VA treatment records on Virtual VA) and readjudicate the increased rating and TDIU issues on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ H. N. SCHWARTZ 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).