Citation Nr: 1616290 Decision Date: 04/25/16 Archive Date: 05/04/16 DOCKET NO. 14-37 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU). 2. Entitlement to an increased initial rating for arthritis of the right knee. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 to September 1982. This appeal comes before the Board of Veterans' Appeals (Board) from February 2012 (TDIU) and February 1995 (right knee arthritis) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina. By way of background, the Board notes that the February 1995 rating decision granted service connection for impairment of the right knee and assigned a noncompensable rating effective October 4, 1994. Later in February 1995, the Veteran expressed dissatisfaction with the noncompensable rating and requested a hearing before Decision Review Officer (DRO) at the RO. A statement of the case (SOC) was issued in May 1995 and in July 1995 the Veteran submitted a timely substantive appeal (VA Form 9) requesting a personal hearing. A DRO hearing was conducted in February 1996 and in March 1996 a supplemental SOC (SSOC) was issued in which the RO granted a 10 percent rating effective October 4, 1994. Notably, the assignment of a 10 percent rating was not the maximum rating and the Veteran did not withdraw his appeal as to the rating issue. Therefore, the increased rating issue remained on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Thereafter, in July 1997 the Veteran requested an increase in his right knee rating, and his claim was denied in a September 1997 rating decision and a January 1998 SOC after he appealed. In March 1998, the Veteran submitted another VA Form 9 requesting a personal hearing before the Board. Then, in April 1998 the RO issued another rating decision granting a 20 percent disability rating effective July 23, 1997. Again, despite the fact that the RO erroneously stated in the April 1998 rating decision that the 20 percent grant constituted a full grant of the benefits sought on appeal, a 20 percent rating was not the maximum rating and the Veteran did not withdraw his appeal as to the rating issue. As the Veteran filed a timely substantive appeal as to the initial rating assigned for his service-connected right knee disability and as he never withdrew his appeal, the February 1995 rating decision is not final and the issue is properly before the Board. See 38 C.F.R. §§ 20.101(d), 20.202; AB, 6 Vet. App. at 39. The fact that the RO issued subsequent rating decisions and assignments is irrelevant to the appellate status of the February 1995 rating decision. In March 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. At the hearing the Veteran indicated that his service-connected psychiatric disability had worsened in severity and that an increased rating was warranted. To the extent the Veteran wishes to file a claim for an increased rating for his psychiatric disability, he is advised that he must submit his claim on a standard form to the RO pursuant to 38 C.F.R. § 3.155 (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the agency of original jurisdiction. VA will notify the appellant if further action is required. REMAND As explained in detail in the introduction section above, in March 1998, the Veteran requested a Board hearing regarding the issue of entitlement to an increased initial rating for his service-connected right knee disability. While a Board hearing regarding the issue of entitlement to a TDIU was held in March 2016, the right knee rating claim was not discussed as an issue. Thus, as a hearing has not yet been held regarding the Veteran's initial right knee rating, and as hearings before a traveling section of the Board (Travel Board hearings) are scheduled by the RO, remand of the appeal is necessary. See 38 C.F.R. § 20.700 (2015). The Veteran filed his claim for a TDIU in May 2011. During the course of the TDIU appeal, the Veteran was service connected for right knee arthritis, adjustment disorder with mixed emotional features and posttraumatic stress disorder, hypertension, and erectile dysfunction, which results in a combined rating of 60 percent. Accordingly, the Veteran does not meet the criteria for a schedular TDIU under 38 C.F.R §4.16(a) (2015). However, the record reflects that the Veteran has been precluded from following or securing substantially gainful employment since on account of his service-connected disabilities during the entire period since the claim was filed. In April 2011, the Veteran's VA orthopedist indicated that the Veteran was "considerably impaired" by his right knee disability and was unable to work. Later in April 2011, the same orthopedist stated that the Veteran's service-connected right knee condition, psychologic disability, and hypertension rendered the Veteran "unable to obtain and follow gainful employment..." While a June 2011 VA examiner subsequently opined that the Veteran would be capable of sedentary work, another June 2011 VA examiner opined that the Veteran's psychiatric disability resulted in mild to moderate impairment of his occupational functioning. Moreover, the record indicates that the Veteran worked in a physical capacity for the majority of his adult life as a long haul truck driver and has never been employed in an office-like position. Based on the foregoing, the Board finds that the Veteran has been unemployable by reason of his service-connected disabilities during the course of the appeal In light of this finding, and because the schedular requirements of 38 C.F.R. § 4.16(a) are not met, referral to VA's Director of Compensation is necessary to determine whether the Veteran is entitled to an extraschedular TDIU under 38 C.F.R § 4.16(b) in the first instance. See Wages v. McDonald, 27 Vet. App. 233 (2015) (Board is not authorized to award extraschedular TDIU prior to obtaining the Director's decision). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a Travel Board hearing at the Columbia, South Carolina, RO in accordance with his March 1998 request regarding the specific issue of entitlement to an increased initial rating for arthritis of the right knee. 2. Pursuant to 38 C.F.R. § 4.16(b), refer the claim for a TDIU to VA's Director of Compensation Service for extraschedular consideration. 3. Then, if a TDIU on an extraschedular basis is not awarded by VA's Director of Compensation Service, issue a SSOC and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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 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). _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2015).