Citation Nr: 1758044	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  99-00 717	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to an increased rating in excess of 20 percent for postoperative residuals of fracture of the supracondylar of the right knee (right knee instability).

2. Entitlement to an increased rating in excess of 40 percent for postoperative fracture of the supracondylar (limited extension) and arthritis of the right knee from June 20, 2012.

3. Entitlement to an increased rating in excess of 10 percent for arthritis of the right knee from December 7, 2000 to June 20, 2012 based on limitation on extension.

4. Entitlement to an effective date earlier than January 16, 2014 for the award of total disability rating due to individual unemployability (TDIU).


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1977 until January 1978.

This matter comes before the Board of Veterans' Appeals (Board) from an August 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The rating decision incorrectly stated the Veteran's right knee disability was service-connected at 10 percent, but it was rated at 20 percent since the initial grant of service connection.

The Board remanded the claim for additional development in January 2001 and later denied the increased rating claim in February 2003. The Veteran subsequently appealed the February 2003 Board decision to the United States Court of Veterans Claims (Court). In a June 2003 remand, the Court vacated the Board's decision for inadequate discussion of notice requirements mandated by the Veterans Claims Assistance Act. In March 2004, the Board remanded the claim in accordance with the Court's Remand. 

In February 2006, the claim returned to the Board and was again denied. The Veteran appealed the February 2006 Board decision to the Court. In the November 2007 Joint Motion for Partial Remand (Joint Motion), the Court remanded the claim to readjudicate the issue of whether the Veteran was entitled to a separate rating for arthritis in the right knee. In September 2008, the Board remanded the claim for compliance with the Court's Joint Motion. 

In February 2009, the RO granted service connection for a separate rating for osteoarthritis in the right knee at 10 percent effective December 7, 2000. 

When the claims for his right knee disability and arthritis returned to the Board in February 2012, they were denied. After appealing to the Court, in an April 2013 Joint Motion for Partial Remand, the parties agreed to remand both claims to address the Veteran's functional limitations during flare-ups for an evaluation in excess of 20 percent for the knee disability and an evaluation in excess of 10 percent for the arthritis. 

In September 2013, the RO granted a 40 percent rating for postoperative residuals of fracture of the supracondylar of the right knee, with arthritis, which were previously separate ratings, effective June 20, 2012. In addition, the RO changed the right knee disability rating from instability to limited extension.

In February 2014, the Board remanded the claims in accordance with the Court's April 2013 Joint Motion. This matter was again remanded by the Board in June 2017 for additional development.

The Veteran and a previous representative testified before a Veterans Law Judge in November 2000. The hearing transcript has been associated with the record. However, the Veterans Law Judge who conducted the November 2000 hearing is no longer employed by the Board. Under 38 C.F.R. § 19.3 (b), this appeal may be reassigned to another Veterans Law Judge for a decision. The Veteran was sent notice in January 2017 and asked if he would like a hearing before another Veteran's Law Judge, but he did not respond. Therefore, the Board finds he has waived his right to another hearing 

The issue of entitlement to TDIU prior to January 16, 2014 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's right knee instability is manifested by at worst moderate instability.  

2. From June 20, 2012, the Veteran's postoperative fracture of the supracondylar (limited extension) and arthritis of the right knee is manifested by limitation of extension not limited to less than 45 degrees.   

3. From December 7, 2000 to June 20, 2012, the Veteran had right knee arthritis with painful motion resulting in non-compensable loss of range of motion but did not have extension limited to 10 degrees or less or flexion limited to 45 degrees or less at any time during this period on appeal.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for a right knee disability based on lateral instability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2017).

2. The criteria for a rating in excess of 40 percent for postoperative fracture of the supracondylar (limited extension) and arthritis of the right knee have not been met from June 20, 2012. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5010-5261 (2017).

3. The criteria for a rating in excess of 10 percent disability for limitation of motion due to arthritis of the right knee from December 7, 2000 to June 20, 2012, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5261 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with 38 U.S.C. § 5103(a)-compliant notice in September 2015. 

The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided VA examinations with respect to the claims decided herein. The examinations adequately provide the findings necessary to a resolution to the appeal. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). 

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, and the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

If the disability more nearly approximates the criteria for the higher of two ratings, the higher rating will be assigned. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). 

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting a decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below will focus on the most salient and relevant evidence and on what that evidence shows, or does not show, relevant to the claims. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address reasons for rejecting any evidence favorable to the veteran).

The terms mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6 (2017). Use of such descriptive terms by medical examiners, although an element of the evidence to be considered by the Board, is not dispositive of an issue.

The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259 (1995).

Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which in this case would be Diagnostic Codes 5260. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion diagnostic code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Ratings for arthritis cannot be combined with ratings based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017).

A claimant who has arthritis resulting in limited or painful motion and instability of a knee may be rated separately under Diagnostic Codes 5260 and 5257. However, any separate rating must be based on additional compensable disabling symptomatology. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998). Separate ratings for limitation of flexion of the leg and limitation of extension of the leg may also be assigned for disability of the same knee if separate compensable ratable disability is shown. VAOGCPREC 9-2004 (2004); 69 Fed. Reg. 59,990 (2004).

Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating, the maximum schedular rating, is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). 

Under Diagnostic Code 5261, extension of the leg limited to 5 degrees warrants a 0 percent rating. Extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension of the leg limited to 15 degrees warrants a 20 percent rating. Extension of the leg limited to 20 degrees warrants a 30 percent rating. Extension of the leg limited to 30 degrees warrants a 40 percent rating. Extension of the leg limited to 45 degrees warrants a 50 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017).

Normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2017). 

Diagnostic Code 5257 provides ratings for impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling. Moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling. Severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017).

Other diagnostic codes relating to the knee are Diagnostic Code 5256 (ankylosis), Diagnostic Codes 5258 and 5259 (symptomatic dislocation or removal of semilunar cartilage), Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum). 38 C.F.R. § 4.71a (2017).

Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). 

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

A May 2001 VA examination report shows that the Veteran reported that his right knee buckled, popped, and fatigued. He reported severe pain and swelling. He used Naprosyn and Tylenol. Walking was a precipitating factor in his pain, but he also experienced spontaneous onset of severe knee pain. He used no crutches, cane, corrective shoes or brace. On examination, the Veteran had a normal gait. His right knee flexed to 125 degrees as compared to 135 degrees for the left knee. Extension was to zero degrees bilaterally. He had no signs of ankylosis, subluxation, instability or limitation of motion except to a minor degree in flexion. 

An October 2002 VA examination report showed that the Veteran claimed that he used a knee brace issued in February or March 2002. The veteran reported constant leg pain. He stated that he occasionally took Tylenol, and that his knee buckled sometimes. On examination, the Veteran wore a right knee jointed brace. He had tenderness in the joint line. There was no redness, heat, effusion, instability, or guarding of movement. Right knee flexion was to 125 degrees as compared to 135 degrees for the left knee. Extension was to zero degrees bilaterally. X-rays were unremarkable except for an old fracture of the right distal femur. The diagnosis was chronic intermittent right knee pain with mild-moderate functional impairment and old healed fracture of distal femur with no instability noted.

A November 2004 VA examination shows the Veteran reported constant right knee pain accompanied by swelling. He generally used Naprosyn, but was currently not using any medication. The Veteran stated that he used a brace on a regular basis; however, no hardware or prosthesis was on his knee at the time of the examination. He reported that he was generally unable to do chores such as mowing the lawn. On examination, the right knee showed no erythema, inflammation, or effusion. The examiner noted tenderness on palpation and pain with movement of the knee. Right knee range of motion was from zero to 160 degrees with pain noted. No instability testing was performed. X-rays showed mild degenerative joint disease and old fracture of the distal femur. The examiner noted moderate to severe functional loss of range of motion, due to pain. 

A December 2004 VA examination shows the Veteran reported right knee pain radiating to the hip, with flare-ups three to four times per week that left him unable to sleep through the night. The veteran reported no relief with medication. He was able to walk 100 yards. The Veteran stated that he had not worked in 26 years due to his knee pain. On examination, the Veteran walked with an affected gait favoring his right leg. However, the examiner noted that when the Veteran felt unobserved, his gait, while not totally normal, was much improved. The examiner noted no deformity, joint effusion, or joint laxity, and stated that there appeared to be no true loss of function after repetitive motion due to fatigue, weakness, pain, or lack of endurance. The examiner reported that the Veteran was experiencing a moderate disability from a healed fracture of the right femur, and that it was "difficult to explain the veteran's inability to be gainfully employed since 1978 based on this injury."

A January 2009 VA examination report shows the Veteran reported that he currently had severe problems with his right knee. He stated that he had constant pain, stiffness, swelling, and giving way. He took over the counter pain medication on a daily basis. The pain was described as a dull, blunting pain that was aggravated if he did any type of prolonged walking or sitting with his knees flexed. He had almost fallen on several occasions when his knee buckled. The Veteran wore a knee brace, which he said was helpful for stability but did nothing for his pain. He reported that the pain would keep him awake at night and that it inferred with his daily activities. The most severe pain and stiffness would affect his mobility for several hours each day. He was not employed. On examination, the Veteran ambulated with a significant limp to the right. He had a right knee brace but did not use a cane, which the examiner believed would be useful. The Veteran was able to rise on his heels and toes but shifts his weight to the left. He was able to do a modified squat of 40 degrees while also shifting his weight to the left. Inspection of the right knee revealed a moderate amount of swelling, warmth, and palpable crepitus. He was extremely guarded. Flexion was to 100 degrees with moderate limitation due to pain. Extension was to zero degrees with moderate limitation due to pain. The Veteran had increased weakness, incoordination, and increased guarding of the right knee as a result of repetition. He had an additional loss in range of motion of the right knee of 10 degrees due to excess fatigability. There was a moderate amount of weakness, and moderate instability was noted. The X-ray study revealed there had been a status post old healed fracture, hypertrophy of the distal right femur right at the knee. There was mild post-traumatic osteoarthritis of the patellofemoral compartment of the femoral tibia joints. The diagnoses were post-traumatic hypertrophy of the distal right femur shaft secondary to service connected knee condition; osteoarthritis of the right knee secondary to service connected knee condition; soft tissue swelling involving the quadriceps tendon and the attachment of the patellar tendon; and suprapatellar bursal pouch effusion. The examiner opined that the Veteran had developed chronic complications that caused significant limitation in functional ability during flare-up. Any repetitive use of the knee would substantially impact functional ability, and in particular functional ability involved with ambulation.

At an April 2013 VA examination, the Veteran was diagnosed with posttraumatic degenerative joint disease of the right knee and posttraumatic hypertrophy of the distal femur shaft. He complained of "terrible" pain that worsened with weight-bearing, climbing stairs, and getting up from a seat. He also reported stiffness and swelling, as well as giving way approximately once every month. He was noted not to be wearing a brace. He reported that the right knee "trembles" when he puts his full weight on it and stated that flare-ups rendered him unable to walk or stand on the knee. Range-of-motion testing showed flexion to 95 degrees, with pain beginning at 35 degrees, and extension limited to 35 degrees. Repetitive-motion testing limited flexion to 90 degrees and extension to 40 degrees. Instability testing returned normal results, although the Veteran was noted to have weakened muscle strength of 4/5 on the right. 

The Veteran was again provided VA examination in June 2016. At that time, he was again diagnosed with osteoarthritis of the right knee, as well as post-operative residuals of fracture of the supracondylar of the right knee, with limitation of extension. Flexion was to 100 degrees, with full extension to 0 degrees and pain on motion. No additional limitation was noted on repetition. No instability or ankylosis was noted on testing. 

A July 2017 VA examination report shows the Veteran was diagnosed with osteoarthritis of the right knee and post-operative residuals of fracture of the  supracondylar of the right knee with limitation of extension. The Veteran reported flare ups in that sometimes he could stand up easily and sometimes the knee is weak and shakes when he stands up. Functional impairment of the knee was reported by the Veteran as an inability to squat with a need to grab something to help pull him up. He reported not being able to swim in deep water or run at all. Range of motion testing of the right knee showed flexion to 115 degrees, with extension to 10 degrees. Flexion was noted to cause pain, but there was no evidence of pain with weight bearing. Left knee range of motion testing was normal. Repetitive use testing was unable to be tested as only passive use was noted as the Veteran could not actively squat. The examiner noted that the right knee had indication of swelling and a subcutaneous soft non-mobile mass on the inferior medial aspect of the patella. Muscle strength testing showed flexion rated as 4 out of 5 and extension 4 out of 5. Muscle atrophy and ankyloses were not noted. Joint stability testing of the right knee showed no instability. Anterior, posterior, medial, and lateral instability were noted as normal. The examiner did report that the Veteran had recurrent patellar dislocation of the right knee with a severity level evaluated as mild. The Veteran reported occasional spontaneous patellar dislocation laterally, with spontaneous correction. The examiner also noted that the Veteran did not have a meniscus condition. The examiner noted that the Veteran did not use any assistance devices for locomotion. Squatting, prolonged walking, and lifting were limited by the decreased ability to squat down to pick something up from the ground.

Increased Rating- Right Knee Instability

The Veteran's right knee disability is currently rated as 20 percent under Diagnostic Code 5257 for moderate subluxation or lateral instability of the knee. For the Veteran to meet the criteria for the next higher rating, the right knee would need to be evaluated as displaying severe recurrent subluxation or lateral instability, which would qualify for a rating of 30 percent. As noted above, the objective findings in the most recent July 2017 VA examination shows that the Veteran's right knee showed no anterior, posterior, or lateral instability. While the Veteran was evaluated with a patellar dislocation of the right knee, the severity level was noted as mild. Prior VA examination in January 2009 similarly showed, at most, moderate instability on testing. Therefore, after a review of the evidence of record shows that the Veteran's right knee instability does not warrant a rating in excess of 20 percent as there is no evidence of severe recurrent subluxation or lateral instability of the right knee. This is so throughout the appeal period. Therefore, the Veteran's claim for a rating in excess of 20 percent under Diagnostic Code 5257 is not warranted, and the claim is denied. 

Increased Rating as of June 20, 2012

The Veteran's right knee disability is currently rated as 40 percent under Diagnostic Code 5010-5261 for arthritis resulting in limitation of extension. For the Veteran to meet the criteria for the next higher rating of 50 percent for right knee limitation of extension, the disability would have to result in extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). After a review of the evidence or record, the Board finds that a rating in excess of 40 percent for right knee limitation of extension as of June 20, 2012 is not warranted. The Board notes that the Veteran's right knee has shown limited extension of, at worst, 40 degrees at the April 2013 VA examination report, which does not meet the criteria for the next higher rating of 50 percent, which would require extension limited to 45 degrees under Diagnostic Code 5261. Therefore, a higher rating based on limitation of extension as of June 20, 2012 is not warranted. Further, the highest rating available for arthritis of a single major joint, as the Veteran experiences here, is 10 percent. Thus, a higher rating from June 20, 2012, on the basis of arthritis is not warranted.

Increased Rating from December 7, 2000 to June 20, 2012

The Veteran also has claimed that a rating in excess of 10 percent is warranted from December 7, 2000 to June 20, 2012 under Diagnostic Code 5010 for traumatic arthritis with non-compensable limitation of motion.  

After a review of the evidence of record the Board finds that from December 7, 2000 to June 20, 2012, the Veteran's arthritis of the right knee with painful motion and limitation of motion was not limited to the extent to warrant a rating in excess of 10 percent. His reports of pain of the right knee and the findings during numerous examinations of his right knee approximated the criteria for a 10 percent rating but no higher by application of 38 C.F.R. § 4.71a, Diagnostic Code 5010, and 38 C.F.R. § 4.59. Specifically, VA examinations from 2001 through 2009 consistently found no limitation of extension, with limitation of flexion to no more than 100 degrees. These findings do not warrant a rating in excess of 10 percent from December 7, 2000, to June 20, 2012, on the basis of limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Therefore, the Board finds that a rating in excess of 10 percent from December 7, 2000 to June 20, 2012 for arthritis of the right knee is not warranted.  

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher ratings for the right knee disability. Therefore, the claim for increase must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an increased rating in excess of 20 percent for postoperative residuals of fracture of the supracondylar of the right knee (right knee instability) is denied.

Entitlement to an increased rating in excess of 40 percent for postoperative fracture of the supracondylar (limited extension) and arthritis of the right knee from June 20, 2012 is denied.

Entitlement to an increased rating in excess of 10 percent for arthritis of the right knee from December 7, 2000 to June 20, 2012 based on limitation on extension is denied.


	(CONTINUED ON NEXT PAGE)



REMAND

Prior to January 16, 2014, service connection was in effect for post-operative residuals of fracture of the supracondylar of the right knee rated as 40 percent and right knee instability rated at 20 percent. The combined service-connected rating for this period was 50 percent. Therefore, the Veteran did not meet the percentage criteria for consideration of TDIU pursuant to 38 C.F.R. § 4.16 (a) (2017). The only avenue for a TDIU then is on an extraschedular basis.

Nevertheless, the Board must still consider whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities prior to January 16, 2014, as he has submitted evidence of a private evaluation that shows he was unable to work during the period in question due to his service-connected disabilities. The Board notes that there is evidence consisting of a November 2013 letter from a VA Vocational and Employment Counselor that reports the Veteran was unsuitable for employment. Therefore, remand is required for the AOJ to refer the claim to the Director of VA's Compensation Service for consideration of an extraschedular TDIU in the first instance. 38 C.F.R. § 4.16 (b).

Accordingly, the case is REMANDED for the following action:

1. Refer the case to the Director of Compensation Service for consideration of whether a TDIU is warranted on an extraschedular basis prior to January 16, 2014, pursuant to 38 C.F.R. § 4.16 (b) (2017).

2. Then, readjudicate the claim on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2014).



______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs