Citation Nr: 1619473 Decision Date: 05/13/16 Archive Date: 05/19/16 DOCKET NO. 14-17 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an increased initial rating for right knee degenerative joint disease (DJD), rated as 10 percent disabling. 2. Entitlement to an increased initial rating for left knee DJD, rated as 10 percent disabling prior to January 28, 2012, and 40 percent disabling thereafter. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Karen Y. Vicks, Attorney ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to July 1986 and from June 1989 to February 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). With regard to the Veteran's left knee claim, during the pendency of the appeal, an April 2015 rating decision granted a 40 percent rating effective January 28, 2012. As the increase does not constitute a full grant of the benefits possible, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Board finds that the July 2013 letter from Dr. R. C. and the March 2015 VA examination report reasonably raise a claim for TDIU. Accordingly, that issue has been added to the cover page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND There are outstanding private treatment records. Specifically, an October 17, 2014 record from Comprehensive Pain Center indicated that the Veteran was scheduled for a left knee magnetic resonance imaging (MRI) study soon, that he should return for follow up appointment on or before November 20, 2014, and that he had an orthopedist appointment scheduled in November 2014 to discuss the results of his upcoming knee MRI. At his March 2015 VA examination, the Veteran reported that his private physician had obtained x-rays and an electromyogram (EMG) of his lower leg. The Veteran indicated that he forwarded these records to the VA. Treatment records from Comprehensive Pain Center and Delaware Orthopedic Specialist subsequent to October 2014 have not been associated with the record. Reasonable efforts must be made to obtain all outstanding private treatment records. Additionally, as the Board is remanding the claims for outstanding private treatment records, for the sake of thoroughness and efficiency, the Veteran should be provided a contemporaneous examination to assess the nature and severity of his bilateral knee disabilities. Finally, regarding the TDIU claim, a July 2013 letter from Dr. R. C., indicated that the Veteran was on high dose pain medication for among other things knee pain and should be considered for disability. The March 2015 VA examination report noted that the Veteran was no longer able to work because his narcotic pain medication prevented him from thinking straight. Therefore, in light of the Court's holding in Rice, the Board finds that the issue of unemployability has been raised and must be developed. Specifically, VCAA notice regarding the Veteran's TDIU claim and an application form should be provided to the Veteran. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, including Comprehensive Pain Center and Delaware Orthopedic Specialists. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. 2. Send the Veteran appropriate notice that advises him about the information and evidence needed to substantiate a claim for a TDIU. 3. Request that the Veteran submit a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 4. Schedule the Veteran for a VA examination to assess the nature and severity of his service-connected right and left knee disabilities. 5. Readjudicate the claims. 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 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). _________________________________________________ R. FEINBERG 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) (2015).