Citation Nr: 1752396 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 08-14 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent from May 1, 2014, through June 11, 2017, and in excess of 60 percent from June 12, 2017, for a total right knee replacement. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from September 2002 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the above VARO; a transcript is of record. A June 2015 rating decision granted service connection for a total right knee replacement, previously rated as posttraumatic degenerative osteoarthritis, right knee. A 100 percent rating was assigned effective March 12, 2013, and a 30 percent rating was assigned from May 1, 2014. An August 2017 rating decision increased the rating to 60 percent effective June 12, 2017. This claim was previously before the Board in March 2016, at which time the Board remanded it for additional development. Additional development is needed before the claim can be decided on the merits. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In June 2015 the Veteran submitted a form from Prattville Primary Medicine Associates in order for it to release his treatment records. The Board remanded the claim in March 2016 in order for the RO to assist in obtaining these records. In June 2017 the Veteran completed a VA form for records to be released to VA. While the Veteran did not include where records should be obtained from, the March 2016 Board remand indicated that records from Prattville Primary Medicine Associates should be requested. Compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the RO must assist the Veteran in obtaining records from Prattville Primary Medicine Associates and anywhere else he reports having received treatment. The duty to assist requires that VA assist the Veteran in obtaining these treatment records. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Furthermore, the Veteran must be notified if the AOJ is unable to obtain any records for which he submits the necessary authorization. 38 C.F.R. § 3.159(e) (2017). The assignment of a disability rating for the Veteran's right knee disability may impact whether he is entitled to a TDIU rating, as set forth in 38 C.F.R. § 4.16(a). As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). VA treatment records to May 2016 have been associated with the claims file. The RO should therefore attempt to obtain all relevant VA treatment records dated from May 2016 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from May 2016 to the present. 2. The Veteran should be given an opportunity to identify any outstanding private records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to specifically include those from Prattville Primary Medicine Associates, should be obtained. For private treatment records, make at least two attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case to the Veteran and his representative, allow the applicable time for response, and then return the case to the Board. The appellant 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). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).