Citation Nr: 1629209 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 06-06 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative disc disease at L5-S1, for the time period from June 3, 2009 to February 1, 2011. 2. Entitlement to an initial disability rating in excess of 20 percent for service-connected degenerative disc disease at L5-S1, for the time period from February 1, 2011. 3. Entitlement to an effective date prior to April 29, 2010, for the award of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). 4. Entitlement to an effective date prior to April 29, 2010, for the award of Dependents' Educational Assistance (DEA) under 38 U. S. C. Chapter 35. 5. Entitlement to a rating in excess of 60 percent for left total knee replacement for the period from July 1, 2012. 6. Entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another and/or housebound status. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and D. Q. ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active military service from October 1966 to October 1968. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a September 2004 rating decision, the RO continued a previously assigned 10 percent rating for service-connected post-operative left knee residuals with synovitis and assigned a 10 percent rating for service-connected post-operative right knee residuals, effective June 21, 2004. In July 2008, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) at the RO. A copy of the transcript of that hearing is of record. In March 2009, the Board remanded those matters to the AOJ for further development. In a January 2010 rating decision, the RO denied entitlement to a TDIU as well as granted entitlement to service connection for degenerative disc disease at L5-S1, assigning an initial 10 percent evaluation from June 3, 2009, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. In an October 2010 rating decision, the RO granted entitlement to service connection for left total knee replacement and assigned a 100 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5055, effective April 29, 2010. Thereafter, a schedular 30 percent rating was assigned from June 1, 2011. In July 2011, the Board remanded these matters to the RO via the Appeals Management Center (AMC) for further development. In the July 2012 Decision Review Officer (DRO) rating decision, the DRO assigned a 100 percent rating following left total knee replacement per 38 C.F.R. § 4.71a, Diagnostic Code 5055, effective April 27, 2011. It was noted that a 100 percent evaluation was warranted, as evidence showed the Veteran underwent another left total knee replacement while he was still receiving the 13 month schedular total evaluation for his previous left total knee replacement. Thereafter, a schedular 60 percent rating was assigned from July 1, 2012. Finally, the DRO assigned a 20 percent rating for the Veteran's lumbar spine disability, effective February 1, 2011. In an October 2012 rating decision, the RO granted entitlement to a TDIU and DEA, effective July 1, 2012. In February 2013, the Veteran testified at a videoconference hearing before a VLJ. A copy of the transcript of that hearing is of record. In August 2013, the Board denied entitlement to a rating in excess of 10 percent for service-connected post-operative right knee residuals for the period prior to October 9, 2008; entitlement to a rating in excess of 30 percent for residuals of right total knee arthroplasty for the period from February 1, 2010; and entitlement to a rating in excess of 10 percent for service-connected post-operative left knee residuals with synovitis for the period prior to April 29, 2010. The Board also remanded the issues of entitlement to a rating in excess of 60 percent for left total knee replacement for the period from July 1, 2012; entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative disc disease at L5-S1 associated with service-connected right knee residuals for the period from June 3, 2009, and in excess of 20 percent for the time period from February 1, 2011; and entitlement to an effective date prior to July 1, 2012, for the award of entitlement to a TDIU for further development. In an April 2015 rating decision, the increased the evaluation of residuals of right total knee arthroplasty to 100 percent, effective December 4, 2014, and also assigned an evaluation of 30 percent, effective February 1, 2016. The RO granted entitlement to special monthly compensation based on aid and attendance/ housebound criteria from December 4, 2014, to February 1, 2016. The RO also continued entitlement to TDIU and DEA. In a September 2015 Decision Review Officer (DRO) rating decision, the DRO granted entitlement to an earlier effective date of April 29, 2010, for the awards of entitlement to TDIU as well as eligibility to DEA. In an April 2016 letter, the Board notified the Veteran that the VLJ who conducted both of his July 2008 and February 2013 hearings before the Board was no longer employed by the Board and advised him of the opportunity to provide testimony at another hearing before the Board. In his April 2016 response, the Veteran's attorney indicated that another videoconference hearing before the Board was not requested. Evidence of record raises the issue of entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another in conjunction with the increased rating claim for the Veteran's service-connected left knee disability. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (the issue of entitlement to SMC is part and parcel of a claim for increased compensation); see also Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim for TDIU is part and parcel of a claim for increased rating). Thus, the issue of entitlement to SMC for aid and attendance due to left total knee replacement is also before the Board and will be considered in conjunction with the increased rating claim on appeal. Parenthetically, the Board notes that the Veteran was in receipt of SMC based on the need for aid and attendance of another from December 4, 2014, to February 1, 2016. The issue of entitlement to a 100 percent temporary total rating (T/TR) under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following left knee surgery on June 28, 2012, has been raised by the record in a November 2012 statement and during the February 2013 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND As an initial matter, the Veteran seeks an earlier effective date for the award of entitlement to TDIU, prior to April 29, 2010. A longitudinal review of the record reveals that the Veteran filed a claim for entitlement to increased ratings for his service-connected right and left knee disabilities on June 21, 2004. In an August 2004 statement, the Veteran indicated that his knee disabilities affected his everyday work and personal life. During the course of those appeals, the Veteran asserted that he was unable to work as an auto mechanic due to his service-connected knee disabilities. During his July 2008 hearing, the Veteran indicated that he was an unemployed auto mechanic after being "let go" in February 2008. However, he did indicate that his knee disabilities had caused his job performance to suffer over the last few years. VA treatment records detailed that the Veteran then underwent a total right knee replacement in October 2009. A SSA disability determination report received in 2009 reflected a primary diagnosis of osteoarthritis of bilateral knees with a disability onset date on October 8, 2009, the date of the Veteran's knee surgery. In May 2009, he reported that he was unable to work due to his service-connected knee disabilities. In VA joints examination reports dated in March 2008, July 2009, and November 2009, VA examiners repeatedly indicated that the Veteran's knee disabilities caused significant effects on his usual occupation as a mechanic. The Veteran's combined service-connected disability rating was 10 percent from March 7, 1975; 20 percent from June 21, 2004; 100 percent from October 9, 2008; 100 percent from December 1, 2009 under the provisions of 38 C.F.R. § 4.30; 50 percent from February 1, 2010; 100 percent from April 29, 2010; and 80 percent from July 1, 2012. 38 C.F.R. § 4.25 (2015). Based on the foregoing discussion, the Board has determined that the Veteran is deemed to have raised a claim for entitlement to TDIU at the time of his June 21, 2004, increased rating claims for his service-connected knee disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). As noted in the INTRODUCTION section above, in a September 2015 DRO rating decision, the DRO granted entitlement to an earlier effective date of April 29, 2010, for the award of entitlement to TDIU. Prior to that date, there are periods of time, albeit short, that the Veteran did not meet the schedular criteria for entitlement to a TDIU under 38 C.F.R. § 4.16(a). Evidence of record during those time periods tends to show the Veteran's service-connected disabilities prevented him from substantially gainful employment from his lifelong occupation as an auto mechanic. For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned on an extraschedular basis when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b) (2015). However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In light of the cumulative evidence of record in this longstanding appeal, the Board finds that the RO must refer the matter on appeal for extraschedular consideration to determine whether the assignment of an extraschedular TDIU rating is warranted under 38 C.F.R. § 4.16(b) prior to April 29, 2010, before it can properly adjudicate the earlier effective date TDIU claim on appeal. As development of evidence concerning the Veteran's employability is potentially incomplete, the Board finds the issues concerning initial evaluations for service-connected degenerative disc disease at L5-S1 as well as entitlement to an effective date prior to April 29, 2010, for the award of DEA eligibility to be intertwined with the TDIU issue herein. Brambley v. Principi, 17 Vet. App. 20, 24 (2003); see also Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined). The Board further notes that the Veteran's claim for entitlement to a rating in excess of 60 percent for left total knee replacement for the period from July 1, 2012, continues to be inextricably intertwined with the entitlement to a 100 percent temporary total rating T/TR under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following left knee surgery on June 28, 2012, referred to AOJ for adjudication in the INTRODUCTION section above. See Henderson v. West, 12 Vet App 11, 20 (1998) (citing Harris v. Derwinski, 1 Vet App 180 (1991) (where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined). The Board notes that this issue was remanded for the exact same reason in August 2013. As such, the Board finds that the AOJ has not substantially complied with the directives of the prior August 2013 remand and, thus, a remand for curative action is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance). In addition, the inferred SMC claim for aid and attendance should be developed by the AOJ given the lay assertions that the Veteran requires the aid and attendance of another due to his service-connected left knee disability. Specifically, the Veteran should be provided with appropriate notice of how to substantiate a claim for entitlement to SMC and provided with a relevant VA examination. Finally, the electronic claims file also reflects that the Veteran has received medical treatment for his service-connected knee and back disabilities from the VA Healthcare System (VAHCS) in Miami, Florida, and Gainesville, Florida, however, as the file only includes records from those facilities dated up to October 2015, any additional records from those facilities should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); see also Bell v Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran the appropriate notice as to how to substantiate his inferred claim for entitlement to SMC for aid and attendance and/or housebound status. 2. Obtain any outstanding VA records of evaluation and/or inpatient or outpatient treatment of the Veteran's service-connected knee and back disabilities from the Miami VAHCS and Gainesville VAHCS, for the period from October 2015 to the present. 3. Provide the Veteran with a VA SMC aid and attendance/housebound examination. All indicated studies should be performed. In particular, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran is in need of aid and attendance from another individual. The criteria in the applicable regulations should be used, including a determination whether the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; inability to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he is unable to feed himself through loss of coordination of upper extremities or through extreme weakness; or unable to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis for protection from hazards or dangers to daily environment. The examiner should also address whether it is at least as likely as not (50 percent or greater probability) that the Veteran is permanently housebound by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his dwelling and the immediate premises on account of disability and it is certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. The examiner should provide supporting rationale for any opinion reached. If the examiner is unable to render an opinion without resorting to pure speculation, then he/she should so state with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). It is important to note that the examiner should only ascertain if the Veteran meets the medical criteria for aid and attendance or is housebound based on his service-connected disabilities alone. His nonservice-connected disabilities cannot be considered in this regard. 4. After adjudicating the matter referred to the AOJ in the INTRODUCTION section above (entitlement to a 100 percent temporary total rating (T/TR) under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following left knee surgery on June 28, 2012) as well as all of the directives above, the RO must then readjudicate the issues currently appeal with consideration of all applicable laws and regulations. 5. The RO must refer the Veteran's electronic claims file to the Director, Compensation & Pension Service, for extraschedular consideration to determine whether the assignment of an extraschedular TDIU rating is warranted under 38 C.F.R. § 4.16(b) prior to April 29, 2010. 6. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). _________________________________________________ MICHAEL MARTIN 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).