Citation Nr: 1533833 Decision Date: 08/07/15 Archive Date: 08/20/15 DOCKET NO. 10-01 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an extraschedular evaluation for left knee disability in excess of the current 10 percent rating for left knee degenerative arthritis, 10 percent rating for symptomatic removal of semilunar cartilage, and 10 percent rating for left knee injury manifested by instability or subluxation. 2. Entitlement to a total rating based upon individual unemployability based upon service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served in the Army National Guard. The Veteran had a period of initial active duty for training from August 1990 to November 1990, and had verified Army National Guard service from February 1996 to March 1996, during which he sustained a disability for which service connection has been granted, so that service is active duty. The Veteran had additional periods of verified and unverified active and inactive duty for training until he separated from the Army National Guard in April 1998. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). After the Board issued an April 2014 decision which partially granted the claim for increased compensation for service-connected left knee disability, the Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, the parties submitted a Joint Motion for Partial Remand in November 2014 and the Court issued an Order which incorporated the Joint Motion. The Veteran's physical claims files and electronic files (Virtual VA and eFolder on the Veterans Benefits Management System) have been reviewed in preparation for this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Court has directed that the Board's April 7, 2014, decision be partially vacated, to the extent that it did not address the issue of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b) for a left knee disability, and denied entitlement to TDIU. The Court stated that the Veteran was not pursuing the issue of entitlement to a higher schedular evaluation for left knee disability from January 29, 2009, "with the exceptions of the awards for left knee arthritis and left knee cartilage that should not be disturbed." The direction to the Board is somewhat unclear, since that sentence is confusing. The initial phrase indicates that the Veteran is no longer seeking a higher schedular evaluation for left knee disability ("is not pursuing the issue of entitlement to a higher schedular rating for a left knee disability"). The following phrase, "with the exception of," appears contradictory. Moreover, the Joint Motion does not address whether the Veteran is (or is not) seeking a higher schedular evaluation under DC 5257. A 10 percent evaluation is also in effect for left knee disability under that Diagnostic Code. In the context of the Veteran's overall arguments that he is entitled to greater compensation for left knee disability, either on the basis of extraschedular entitlement under 38 C.F.R. § 3.321(b) or entitlement due to unemployability, the Board finds that the Joint Motion for Partial Remand directs VA to determine whether the Veteran is entitled to an increased schedular or extraschedular evaluation for left knee disability, but, to the extent that separate 10 percent ratings have been assigned for left knee arthritis and left knee cartilage disabilities, those ratings may not be reduced. The Board also notes that, during the pendency of this appeal, the Veteran sought and received a temporary total evaluation for left knee disability following surgery in December 2012. After the temporary total evaluation ended in March 2013, the Veteran sought an extension of that temporary total rating. That request was denied. The Joint Motion appears to provide an opportunity for the Veteran to establish that he is entitled to a higher, staged, rating for at least some time following the expiration of the temporary total rating. The Board is unable to determine whether the factual evidence following the expiration of the temporary total rating in March 2013 is complete, since the claim on appeal was transferred to the Board while the Agency of Original Jurisdiction adjudicated the temporary total rating claim and the request for extension of the temporary total rating. Preliminarily, the Board feels that it is unable to determine whether the criteria for an increased evaluation in excess of the current 10 percent rating for left knee degenerative arthritis, 10 percent rating for symptomatic removal of semilunar cartilage, and/or the 10 percent rating for left knee injury manifested by instability or subluxation are met on a schedular basis after March 1, 2013, as those facts were only partially addressed in the December 2013 Supplemental Statement of the Case, and were not addressed in terms of entitlement to an increased, staged rating after March 1, 2013, or entitlement to an extraschedular rating following expiration of the temporary total rating (TTR). In light of the two additional, separate compensable evaluations assigned by the Board after the AOJ's transfer of the file, and the fact that additional evidence about the Veteran's left knee disability subsequent to March 1, 2013, was added to the claims file since the AOJ issued the last Supplemental Statement of the Case in December 2013, the Board cannot consider all evidence of record. Some of that evidence, including evidence specific to intraoperative findings confirming that a meniscal tear was present prior to the December 2012 surgery, appear to be favorable to a higher schedular rating, or to an extraschedular rating, if an increased schedular rating cannot be granted. Moreover, the Veteran's statements and arguments raise a claim for a staged rating after the March 1, 2013, expiration of his temporary total rating, that is, the Veteran contends that his symptoms of left knee disability were more severely disabling, at least upon his initial return to work, than his symptoms were when he submitted the claim for an increased rating in 2009. In particular, the Veteran raises a claim for separate ratings for separate periods of time, both before and after the December 2012 surgery, based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that consideration of a staged rating is applicable to ongoing ratings. The Veteran contends that industrial impairment after March 1, 2013, has not been adequately considered. The Veteran contends, in essence, that March 2013 VA evaluation of the severity of left knee disability did not adequately reflect industrial impairment. When a claimant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination is appropriate. The Board therefore concludes that it is necessary to conduct additional development of the claim, including prior to and after the March 1, 2013, expiration of a temporary total rating, before appellate review of the claim for a higher level of compensation, either on a schedular or an extraschedular basis, or on the basis of unemployability, is completed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to submit or identify private clinical records from February 2010 to the present, and any non-clinical records, to include employment medical records, sick leave records, lay statements, and the like, or any other evidence relevant to show a symptom of left knee disability or impairment of industrial/occupational functioning that is not compensated under a current evaluation or to show that the severity of left knee disability has increased since the last VA examination in March 2013. 2. Obtain VA clinical records, to include laboratory, radiology, and physical therapy reports, orthotics prescriptions, and the like, from March 1, 2013, to the present. 3. Send the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, and issue appropriate VCAA notice for a claim of entitlement to TDIU. 4. Schedule the Veteran for an appropriate VA examination to determine the current severity of the Veteran's left knee disability, to include all manifestations. The Veteran's claims folder must be reviewed by the VA examiner. All necessary special studies or tests are to be accomplished. The examiner must clarify the current severity of the Veteran's left knee disability in accordance with VA rating criteria. The examiner should be asked to provide an opinion as to whether the Veteran manifested a constant level of severity of left knee disability from January 29, 2009, to December 14, 2012. If there was any fluctuation of symptoms of left knee disability, either increased severity or decreased severity of disability, during the period from January 29, 2009, to December 13, 2012, the examiner should identify the date of the increase or decrease in the disability level and reference the clinical records and facts which support the opinion that there was an increase or decrease in the severity of left knee disability. The examiner should be asked to provide an opinion as to whether the Veteran manifested a constant level of severity of left knee disability from March 1, 2013, to the present. If there was any fluctuation of symptoms of left knee disability, either increased severity or decreased severity, during the period from March 1, 2013, to the present, the examiner should identify the date of the increase or decrease in the disability level and reference the clinical records and facts which support the opinion that there was an increase or decrease in the severity of left knee disability. The examiner must provide a complete rationale for any opinion expressed. 5. Then, readjudicate the claim for a higher rating for left knee disability, to include on a schedular basis, including post-surgery, with consideration of whether an increased, staged rating is warranted for any period of increased left knee disability. Consider whether any disability factor or fluctuation of the severity of disability supports an extraschedular evaluation or TDIU. If the benefits sought remain denied, the Veteran must be furnished a Supplemental Statement of the Case. The Veteran must be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ Michael J. Skaltsounis Acting 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).