Citation Nr: 1624019 Decision Date: 06/15/16 Archive Date: 06/29/16 DOCKET NO. 10-47 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for residuals of a left knee injury with arthritis prior to March 24, 2011. 2. Entitlement to an evaluation in excess of 30 percent for residuals of a left knee injury with arthritis status post total arthroplasty on or after May 1, 2012. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from October 1987 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. That rating decision continued the existing 10 percent evaluation for the Veteran's left knee, and denied service connection for his right knee. During the pendency of the appeal, the Veteran filed a March 2011 claim for a temporary total evaluation for his service-connected left knee disability following total knee arthroplasty requiring convalescence. In an April 2011 decision, the RO granted a temporary total evaluation effective March 24, 2011, the date of his surgery. In a May 2011 decision, the RO extended that temporary total evaluation to April 30, 2012, and assigned a 30 percent evaluation effective from May 1, 2012. The Board remanded this case in August 2014. While on remand, in a June 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for the Veteran's right knee osteoarthritis with a 10 percent initial evaluation and left knee surgical scars with a noncompensable initial evaluation, each effective September 2009. The Board finds that the grants of service connection constitute a full award of the benefits sought on appeal with respect to these issues. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board indicates that the appellant did not initiate an appeal with the AOJ's initial ratings or effective date. Thus, those matters are not in appellate status. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). As the AOJ's June 2015 decision constitutes a full grant of the benefits sought on appeal, no further consideration is necessary. This case consists entirely of documents in the Veterans Benefits Management System (VBMS). The Board has reviewed all relevant documents in VBMS. Any future consideration of this Veteran's case should take into account the existence of this electronic record. The Veteran's Virtual VA claims file includes additional VA treatment records, and the RO considered these records in a June 2013 supplemental statement of the case (SSOC). All other documents in Virtual VA are duplicative of those in VBMS. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Records from the Durham VAMC for treatment during the appellate period are available in the electronic claims file. However, the Veteran has also referenced treatment at VA healthcare facilities in both Dayton, Ohio and Columbus, Ohio in an April 2012 statement. Earlier that month, he had specified his dates of treatment at each facility in a privacy release form for a Congressional inquiry. The Veteran specified that he sought treatment at the Dayton VAMC from 1989 through 1995. However, the record presently before the Board contains only records from Dayton VAMC from July 1993 through February 1994, available in VBMS, and from August 1991 to June 2006, available in Virtual VA. Similarly, the Veteran specified that he sought treatment at the Columbus VAMC from 1995 through 2008. However, the record presently before the Board contains only records from the Columbus VAMC from May 2000 through May 2002, available in Virtual VA. Therefore, there appear to be further outstanding VA treatment records. In light of the Federal Circuit's recentl decision in Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016), which held "that 38 C.F.R. § 3.159(c)(3) extends the VA's duty to assist to obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance," the Board finds that remand is required to attempt to obtain those outstanding Columbus VAMC and Dayton VAMC treatment records. While on remand, the AOJ should also obtain the most recent Durham VAMC treatment records. Additionally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of TDIU is part and parcel of an increased disability rating claim when it is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that a Veteran is appealing the rating assigned for a disability, TDIU must be considered. Id. The Veteran reported at an October 2010 orthopedic consultation that his left knee symptoms had led to significant work impairment. In December 2010, the VA treatment records reflect that he would require Vocational Rehabilitation following his March 2011 surgery for a change in employment. In March 2011, the Veteran confirmed to an occupational therapist at the Durham VAMC that he was not currently working, and had fallen at work when his knee locked up. The electronic claims file further reflects that he received Vocational Rehabilitation benefits in 2012. Therefore, during the course of this appeal, the Veteran has raised the issue of TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a Veteran submits evidence of a medical disability and additionally submits evidence of unemployability, VA must consider TDIU). Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure any outstanding VA medical records from the Dayton VAMC for treatment from 1989 through August 1991, from the Columbus VAMC from 1995 through May 2000 and since May 2002, and from the Durham VAMC for treatment since November 2014. 2. The AOJ should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disorders, in accordance with Rice, 22 Vet. App. at 447. In so doing, the RO may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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).