Citation Nr: 1319684 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 06-20 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to in increased rating for residuals of a left knee injury with arthritis and limitation of motion, currently evaluated as 20 percent disabling. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to September 1971 and from April 1974 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (Court) in July 2012, which vacated a July 2011 Board decision and remanded the issue on appeal for additional development. The appeal arose from a February 2005 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a hearing before a Decision Review Officer at the RO in November 2006. The Board notes that the Court has held that a claim for a TDIU is generally a rating theory and "not a separate claim for benefits." Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Court, however, noted that bifurcation of a claim is generally a matter within VA discretion. Id. at 455, n. 7. The Court has also held that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). The issue of entitlement to a TDIU is the only matter for appellate review in this case. Nevertheless, the issue of an increased rating for the service-connected left knee disability is inextricably intertwined with the TDIU issue on appeal and is listed on the title page herein. In January 2013, the Board remanded the TDIU issue for further development. The appeal is again 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 In the January 2013 remand, the Board in part requested that appropriate efforts be taken to obtain information/records related to the Veteran's previous employment at Kentucky Fried Chicken and Manor Care Nursing Home, and that the Veteran be afforded a VA examination for an opinion on whether his service-connected left knee disability, either by itself or in conjunction with his other service-connected disabilities, results in a marked interference with employment or an inability to secure or follow a substantially gainful occupation. The Board also requested that the assigned rating for the service-connected left knee disability be reassessed prior to a review of the issue of entitlement to a TDIU. The Veteran was afforded a VA examination in March 2013. The examiner indicated that the Veteran's left knee disability impacts his ability to work. The examiner commented that the Veteran's left knee disability would prevent him from physical work that requires long periods of standing, walking or climbing but would not prevent him from obtaining some type of sedentary employment. Although the examiner provided an opinion on the Veteran's ability to secure or follow a substantially gainful occupation, the examiner did not provide an opinion on whether the left knee disability, either by itself or in conjunction with his other service-connected disabilities, results in a marked interference with employment, which goes toward the issue of whether the Veteran's left knee disability warrants an extraschedular evaluation. Without a proper assessment of the Veteran's left knee disability, the Board cannot proceed with adjudication of the claim for a TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the appeal must be remanded for compliance with the January 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998). With respect to the employment records, the Veteran was asked to obtain the information/evidence from Kentucky Fried Chicken and Manor Care Nursing Home in March and April 2013 letters. In a March 2013 statement, apparently received after the issuance of the April 2013 letter, the Veteran indicated that Kentucky Fried Chicken had told him that there is no record of his working there from June 12, 2004 to July 12, 2004. However, the Veteran has not provided a reply with respect to Manor Care Nursing Home. Thus, on remand, he should be provided one final opportunity to provide any information/evidence on that employer. The RO/AMC did not adjudicate the May 2011 claim for an increased rating for the service-connected left knee disability. This must be done as this issue is inextricably intertwined with the TDIU issue on appeal. Lastly, the record, including the Veteran's Virtual VA file, contains treatment notes from the Cleveland VA Medical Center (VAMC) through February 2013. Thus, any treatment notes since that time should be obtained. Accordingly, the case is REMANDED for the following action: 1. One final attempt should be taken to obtain any information/records related to the Veteran's previous employment at Manor Care Nursing Home. If the records cannot be obtained, the Veteran should be provided notice of that fact. Such notice must identify the records VA was unable to obtain, explain the efforts taken to obtain the records, describe any further action VA would take regarding the claim, and notify the Veteran that he is ultimately responsible for providing the evidence. 2. Obtain any records of treatment from the Cleveland VAMC since February 2013. 3. Then, arrange for the Veteran's claims file to be reviewed by the examiner who conducted the March 2013 VA examination (or a suitable substitute) for an addendum that addresses the following. The examiner should state whether the Veteran's service-connected residuals of left knee injury with arthritis and limitation of motion, either by itself or in conjunction with his other service-connected disabilities, results in a marked interference with employment. The opinion should be provided based on the results of examination, history provided by the Veteran, a review of the medical evidence of record, and sound medical principles. The Veteran may be recalled for examination, if deemed necessary. 4. After completion of the above and any additional development deemed necessary, the RO/AMC should adjudicate the May 2011 claim for an increased rating for the service-connected residuals of left knee injury with arthritis and limitation of motion and provide appropriate notice thereof to the Veteran and his representative. The RO/AMC should also readjudicate the TDIU issue on appeal. All applicable laws and regulations should be considered. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). 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).