Citation Nr: 1640371 Decision Date: 10/12/16 Archive Date: 10/27/16 DOCKET NO. 12-18 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a higher initial rating for a right knee disability, rated as 10 percent disabling prior to March 28, 2011, 100 percent disabling from March 28, 2011 to April 30, 2012, and 30 percent disabling thereafter. 2. Entitlement to a higher initial rating for a right elbow disability, rated as noncompensable prior to November 9, 2015 and 10 percent disabling thereafter. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The January 2010 rating decision granted service connection for a right knee disability with an initial noncompensable rating, effective August 10, 2005. A June 2014 rating decision found clear and unmistakable error had been made with respect to the initial rating assigned for the right knee disability and assigned a 10 percent rating from the effective date of service connection, August 10, 2005. The June 2014 rating decision also granted a temporary total rating for the right knee disability from March 28, 2011 to April 30, 2012 for right knee arthroplasty, with a 30 percent rating assigned thereafter. The September 2013 rating decision granted service connection for a right elbow disability with an initial noncompensable rating. A January 2016 rating decision increased the rating assigned for the right elbow disability to 10 percent, effective November 9, 2015. The Veteran appeared at a hearing before the undersigned in May 2016. A transcript of the hearing is of record. During the May 2016 hearing, the Veteran reported he is no longer able to work due to the functional impairment resulting from his service-connected disabilities. Thus, the issue of entitlement to TDIU is an element of the present appeal, as reflected on the title page of this decision, because the appeal of an initial rating encompasses a TDIU claim when unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND During the May 2016 hearing, the Veteran reported he has been receiving disability benefits from the Social Security Administration (SSA) as a result of his service-connected disabilities since approximately 2001. There is no indication that SSA records have been requested. Here, it appears SSA records are relevant to the issues on appeal; therefore, they must be obtained. Accordingly, the case is REMANDED for the following action: 1. Request any records of a disability claim that may be available from the SSA. Associate any obtained records with the claims file. If the records are not obtained associate documentation of all efforts to obtain the records with the claims file and make appropriate findings consistent with statute and regulation as to why efforts to obtain the records ceased. 2. Develop and adjudicate the issue of entitlement to a TDIU that has been raised by the record under the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), to include on an extra-schedular basis if necessary. 3. Review any evidence obtained pursuant to the development above to determine whether it warrants higher initial rating for the service-connected right knee and elbow disabilities or award of TDIU. If the percentage requirements are not met for schedular TDIU, submit the proper documentation to the Director, Compensation Service for extraschedular consideration. If any benefit sought is not granted, furnish to the Veteran and his representative a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if otherwise in order. 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). _________________________________________________ JAMES G. REINHART 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).