Citation Nr: 1622819 Decision Date: 06/07/16 Archive Date: 06/21/16 DOCKET NO. 03-19 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an extraschedular rating for right knee injury with degenerative joint disease (right knee disability). 2. Entitlement to rating in excess of 10 percent for instability of the right knee. 3. Entitlement to an effective date prior to August 13, 2008, for the grant of a separate rating for instability of the right knee. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney-at-Law ATTORNEY FOR THE BOARD L. Zobrist, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1977 to March 1980. The matter of entitlement to an extraschedular rating for right knee disability is before the Board of Veterans' Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). It originally came before the Board on appeal from an August 2002 rating decision by the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), that denied the Veteran's request for a rating in excess of 10 percent for service-connected right knee disability. It was previously before the Board in January 2005, when it was remanded for additional development, and in December 2005, when the Board denied the claim. He appealed that decision to the Court, resulting in an April 2007 Joint Motion for Remand (JMR) by the parties. A May 2007 Court Order remanded the matter for compliance with the instructions in the JMR. In March 2008 and July 2011 the Board remanded the matter for further development. In a May 2014 decision, the Board, inter alia, granted a "staged" 20 percent (schedular) rating, but no greater, for right knee disability, as of August 13, 2008, and declined to refer the matter for extraschedular consideration. The Veteran appealed the May 2014 Board decision to the Court, which, by Memorandum Decision in October 2015, vacated the portion of the Board's decision regarding the matter of extraschedular consideration for right knee disability and remanded the matter for action consistent with the Court's decision. [The Court did not vacate (and the Veteran did not present any argument as to) the Board's determination that a higher schedular rating was warranted for service-connected right knee disability. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc) (arguments not raised on appeal to the Court are considered to be abandoned). The Court affirmed the Board's decision with respect to a left knee disability. Consequently, those matters are no longer before the Board.] The matters of the rating and effective date assigned for right knee instability are before the Board on appeal from a November 2012 rating decision that (as part of the appeal of the schedular rating assigned for right knee disability) granted a separate 10 percent rating for instability, effective August 13, 2008. They were previously before the Board in May 2014, when they were remanded for issuance of a statement of the case, per Manlicon v. West, 12 Vet. App. 238 (1999). The matter of a TDIU is on appeal from a January 2009 rating decision. It was previously before the Board in July 2011 and May 2014, when it was remanded as inextricably intertwined with the other rating matters remanded in those decisions. The previous Board decisions were issued by a Veterans Law Judge who is no longer with the Board; the matters have been reassigned to the undersigned. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board acknowledges that the right knee rating matters on appeal (to include consideration of an extraschedular rating for right knee disability and the effective date and rating assigned for separately compensated right knee instability) stem from an August 2002 rating decision and have previously been the subject of several remands, at both the Court and Board level. However, upon comprehensive review of the record, the Board has identified outstanding federal records that appear to be pertinent and that have not been solicited for association with the record. Thus, while the Board regrets the additional delay, it nonetheless finds that remand is necessary to ensure that the record is complete. First, in June 2008 correspondence, the Veteran stated that he applied for Social Security Administration (SSA) disability benefits, but was denied due to a lack of "points." While the Veteran was apparently not granted SSA disability benefits, his correspondence nonetheless suggests that SSA may have obtained or created records pertinent to the disabilities on appeal. As the "duty to assist" extends to obtaining federal records, to explicitly include SSA disability records, where they may be relevant to the issue under consideration, remand is necessary to acquire these records. See 38 C.F.R. § 3.159(c)(2). Second, the claims file contains June 2006 correspondence from the Office of Personnel Management (OPM), clarifying which disabilities were judged to affect his employment with the U.S. Postal Service (service-connected disabilities were included), and March 2009 correspondence from OPM, indicating that disability retirement had been approved. It does not appear that records underlying OPM's determination have been requested for association with the record. These records are also covered under VA's "duty to assist" as defined by the applicable regulation. Remand is necessary to acquire these federal records and associate them with the Veteran's file. Additionally, in April 2016 correspondence to the Board, the Veteran's attorney stated that "[t]he Veteran has only worked jobs that required manual labor, and does not have the training or education to work a sedentary job." The attorney also stated that employment "exacerbates [the Veteran's] symptoms." The Board notes that the Veteran's May 2008 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) indicates that he has a college education, to include a Doctoral degree in theology, and that he is currently employed as a pastor. Thus, the Board construes the April 2016 correspondence as an implied argument that the Veteran's pastoral duties do not constitute more than "marginal" employment or that his doctoral degree and pastoral experience are not adequate to allow him to obtain substantially gainful sedentary employment. Consequently, on remand the AOJ should (1) request that the Veteran complete an updated VA Form 21-8940; (2) request that the Veteran authorize VA to contact the church where he is (or was) employed for additional information regarding his employment; and (3) arrange for a vocational assessment to determine whether training for employment within the Veteran's physical capability (due to service-connected disability) is feasible in light of his education/experience. Accordingly, the case is REMANDED for the following action: 1. Take appropriate action to request all decisions and records, including medical records, associated with any claim for SSA or OPM disability benefits. If additional records are not available, or the search for any such records otherwise yields negative results, that fact should be clearly documented in the claims file. 2. Ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability and to authorize VA to contact the church where he is (or was, in May 2008) employed for additional information regarding the nature of his employment. 3. Then, forward the Veteran's record to a VA vocational specialist for review and an advisory opinion regarding the types of employment consistent with the Veteran's education and occupational experience, if any, that remain feasible despite the manifestations and functional impairment associated with his service-connected disabilities noted in evaluation/treatment records and the types of employment that would be precluded by the service-connected disabilities. The consulting vocational specialist should opine whether the Veteran's service-connected disabilities preclude him from participating in any substantially gainful employment consistent with his education and work experience. The consultant should identify (provide examples of) the types of employment that would be inconsistent with the service-connected disabilities (in light of the Veteran's education and work experience) and any types of employment that would remain feasible despite the service-connected disabilities. Further, the consultant should provide an opinion as to whether rehabilitation services would be available to the Veteran with regard to any vocation for which he has the necessary educational skills and background to pursue and for which his disabilities enables him to permit training. The VA vocational counselor should provide rationale for the opinion offered. 4. Then, review the record and readjudicate the claims. If any remain denied, issue an appropriate supplemental statement of the case and afford the Veteran and his attorney opportunity to respond. The case should then be returned to the Board for further review. The appellant 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). _________________________________________________ VICTORIA MOSHIASHWILI 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).