Citation Nr: 1510607 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 11-33 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for residuals of a gunshot wound (GSW) injury to the left knee (muscle group XI) with peripheral neuropathy. 2. Entitlement to a disability evaluation in excess of 30 percent from October 8, 2009 to August 2, 2012 and in excess of 50 percent from August 3, 2012 to the present. 3. Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: M. Toomey, Esq. ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from April 1967 to July 1972, to include duty in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania which denied ratings in excess of 10 percent for service-connected anxiety and GSW residuals to the left knee. A subsequent rating action, in October 2011, granted a 30 percent rating for anxiety, and granted service connection for separate manifestations of GSW residuals which have not been appealed. A February 2013 rating action established a 50 percent rating for service-connected anxiety; however, the effective date of that award was set to August 3, 2012, creating two periods for this portion of the appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his GSW residuals to his left knee and his service-connected anxiety are more severe than what is currently contemplated in the assigned ratings. He maintains that these disorders, in concert with other service-connected disablement (B-Cell lymphoma), render him unable to engage in any type of gainful employment. He has raised this contention in the context of a claim for a higher disability evaluation, and thus, he has forwarded a contention for entitlement to TDIU as part and parcel of that claim. He has not, as of yet, received notice with respect to how to substantiate such a claim, and this must be done prior to adjudication of that portion of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). It is further noted that the Veteran was last examined by VA in August 2012 with respect to his left knee and psychiatric functioning. Since that time, the Veteran has been awarded disability benefits from the Social Security Administration (SSA), and those records have been associated with the claims file. At the time of the most recent VA examination, these records from SSA were not part of the claims file and were not available for review by the respective orthopedic and psychiatric examiners. Of note, is that the SSA adjudicatory determination found that the Veteran was "disabled" for their purposes as due to disablement in knee and psychiatric functioning. Upon review of the VA examination records, however, it is indicated that the Veteran left his last employment in 2011 voluntarily and that the specific impact of the knee and mental functioning didn't appear to be significant enough to prevent employment. Given the addition to the record of the SSA records which do, at least potentially, suggest a different conclusion than what was found several years ago upon VA examination (i.e. the SSA adjudication does indicate an inability to work related to knee and mental health problems), it is not readily apparent that the VA examiners in 2012 had the most complete understanding of the service-connected disability picture available to them. Further, the later addition of the records does suggest, at least potentially, that there has been a worsening with respect to the left knee and mental health functioning. As this is the case, and as the August 2012 examination reports are somewhat dated in nature, the Board determines that new, comprehensive VA examinations addressing the extent of severity of the Veteran's GSW residuals in the left knee and of service-connected anxiety disorder should be afforded. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Hyder v. Derwinski, 1 Vet. App. 221 (1991). Prior to the affording of these examinations, outstanding VA medical treatment records should be obtained. It is indicated that the Veteran receives regular treatment for his service-connected disabilities (to include his mental health condition), and the most recent VA records date from approximately 2012. As all records held in federal custody are deemed constructively part of the record, VA has a duty to secure outstanding records of VA treatment. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In that regard, it is noted that the Veteran does some travelling between his home in Pennsylvania and locations in Florida. In several clinical consultations with VA providers in 2012, it was indicated that the Veteran was looking to establish VA care in that state. Thus, in searching the entire VHA system for records for the Veteran, care should be made to check treatment offered at VA locations in Pennsylvania and Florida. Additionally, it is noted that in the most recent rating decision, dated in February 2013, the service-connected anxiety disorder was increased in evaluation to a 50 percent rating; however, the effective date of this award was set to August 3, 2012 (the date of the most recent VA examination). The Veteran was told that, with respect to the period from August 3, 2012 to the present, that the rating decision was a full grant of the benefit sought, and in issuing the supplemental statement of the case (SSOC), it was only indicated that the claim for entitlement to a rating in excess of 30 percent prior to August 3, 2012 was on appeal. While the Veteran did make some mention of a 50 percent rating satisfying his claim, his representative has also forwarded an indication that the service-connected conditions are so disabling (alone or in combination with other factors) as to prevent work. The Board attempted to clarify as to if there was any desire to withdraw an appeal as due to the award of the 50 percent rating, and all that was returned was a desire by the Veteran to adjudicate the claims without remand to the RO for consideration of evidence submitted since the last SSOC. Accordingly, it cannot be concluded that the partial grant of the 50 percent rating, from August 3, 2012 to the present, satisfies the Veteran's appeal (it is not a full grant of the benefit sought, as it is not representative of a 100 percent evaluation). See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Accordingly, after all evidentiary actions directed by this remand have been accomplished, the RO should prepare an SSOC which accurately considers both periods under appeal. Accordingly, the case is REMANDED for the following action: 1. Secure outstanding VA treatment records from the Veteran, from approximately 2012 forward, from any and all VA treatment facilities (to include locations in Pennsylvania and Florida). 2. Provide the Veteran with the appropriate notice as to how to substantiate the TDIU portion of his claims for higher ratings. Allow the appropriate amount of time for response, and associate any evidence received with the claims file. 3. Schedule the Veteran for comprehensive examinations by appropriate examiners to determine the severity of service-connected GSW residuals in the left knee and anxiety disorder. All necessary tests should be accomplished, and each examiner should describe the functional impairment associated with the disabilities for all periods under appeal. In noting that the Veteran is considered disabled by the SSA with respect to his employability, it is asked that the examiner specifically opine as to what impact, if any, the anxiety disorder and left knee disablement have (either alone or acting in concert with other factors) in his ability to secure and maintain any type of gainful employment consistent with his skills, education, and training. A rationale should accompany each conclusion reached in the narrative portion of the examination report. 4. Following the above-directed development, re-adjudicate the Veteran's claims. Should the claims not be granted in their entirety, issue an appropriate supplemental statement of the case. In that regard, should a disability evaluation in excess of 50 percent from August 3, 2012 to the present not be granted in its entirety, the supplemental statement of the case must consider that portion of the appeal. Following this, return the case to the Board for adjudication. 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 2014). _________________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).