Citation Nr: 1416656 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 11-11 981A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE 1. Entitlement to a rating higher than 40 percent for post-operative residuals, meniscectomy, with degenerative joint disease of the right knee. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD A. Santiago, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to August February 1973. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board notes that, in June 2009, the Veteran also filed claims for service connection and an October 2009 rating decision denied these claims. The Veteran submitted a timely notice of disagreement in December 2009, and an SOC was issued in November 2012. However, the record does not show that he perfected his appeal by filing a substantive appeal after the issuance of the November 2012 SOC. 38 C.F.R. §§ 20.202, 20.302. Therefore, the Board finds that the Veteran did not perfect at appeal as to these issues and they are not before the Board at this time. The Veteran requested a hearing at a local VA office and such hearing was scheduled for August 7, 2013. However, the Veteran failed to appear for his hearing and did not request that his hearing be rescheduled or provide good cause for his failure to appear. It follows that his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2013). In his December notice of disagreement, the Veteran contends that he was forced to retire early from his work with Pacific Bell ten years ago because he could no longer perform his job because of his knee disability. Accordingly, a TDIU claim is reasonably raised by the record, and the title page reflects inclusion of this issue on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that, in addition to the paper claims file, there is an electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The record reflects that the Veteran was last examined for his service-connected knee disability in September 2009. Since that time, the medical evidence of record indicates the Veteran now uses a wheelchair, although it is unclear if the need for the wheelchair is due to his service-connected knee disability. In any event, it has now been almost five years since VA assessed the severity of the Veteran's service-connected knee disability. Given the passage of this much time, the Board finds a new VA examination is required to properly assess the current severity of the Veteran's knee disability. The Veteran has not been provided with VCAA notice of the requirements for a TDIU claim. Such should be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA knee examination to determine the current level of severity of the Veteran's service-connected knee disability. The claims file must be review by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported, to include range of motion testing. 2. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. 3. After the above has been completed to the extent possible, and additional development deemed necessary is conducted, the agency of original jurisdiction should adjudicate the claims. If the claims are denied, the Veteran should be issued either a Statement of the Case or a Supplemental Statement of the Case and be given a reasonable opportunity to respond. Thereafter, the issues should be returned to the Board, if in order. 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. 2013). _________________________________________________ M. N. HYLAND Acting 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) (2013).