Citation Nr: 1750137 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 05-30 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 30 percent for service-connected left knee strain. 2. Entitlement to a rating in excess of 10 percent for service-connected left knee laxity. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Navy from November 1986 to November 1989. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and from a March 2012 rating decision by the VA RO in Cleveland, Ohio. During the course of the appeal, jurisdiction of the case was transferred from the Huntington RO to the RO in Buffalo, New York, and then to the Cleveland RO. In March 2007, the RO assigned a temporary total (100 percent) rating from February 16, 2006, to April 1, 2006, for surgical or other treatment necessitating convalescence of the service-connected left knee strain. The rating for the left knee strain during the period when it was rated totally disabling is not in dispute, and not at issue herein. In May 2009, the Board denied the Veteran's claim for an increased rating for left knee strain. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2010, the Veteran's representative and the VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion for Remand (Joint Motion), requesting that the Court vacate the Board's May 2009 decision and remand the case for re-adjudication in compliance with directive specified. The Court issued an order in February 2010, granting the Joint Motion, and returned the case to the Board. In October 2010, the Board remanded the claim for an increased rating for left knee strain for further development, in accordance with the Joint Motion directives. Additionally, the October 2010 Board considered the issue of TDIU to be raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the claim of TDIU for further development. In an April 2011 rating decision, the RO granted service connection for left knee laxity as secondary to the service-connected disability of left knee strain with an evaluation of 10 percent, effective April 14, 2011. The matter of the rating to be assigned for the Veteran's service-connected left knee laxity is considered a part of the Veteran's appeal for an increased rating for his left knee disability. In December 2015, the case was remanded again for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is warranted to further develop the Veteran's claims. In October 2010, the Board remanded the claims, in pertinent part, to obtain the Veteran's vocational rehabilitation file and associate it with the claims file. Consequently, in April 2011 VA examination report, it was noted that the VA examiner reviewed the Veteran's vocational rehabilitation folder. Additionally, a June 2011 supplemental statement of the case (SSOC) listed the Veteran's rehabilitation folder as evidence having been reviewed. Despite the indications from the April 2011 VA examiner and the preparer of the June 2011 SSOC, that they were able to review the Veteran's vocational rehabilitation folder, the Board has reviewed the record carefully and finds that such records are not associated with the claims file. Therefore, on remand, the AOJ should obtain and associate with the claims file the Veteran's vocational rehabilitation folder. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's vocational rehabilitation folder. 2. Obtain any outstanding VA treatment records and associate with the claims file. 3. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claims. If any of the issues remain denied, issue an appropriate SSOC and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ A. ISHIZAWAR 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) (2016).