Citation Nr: 1758167	
Decision Date: 12/15/17    Archive Date: 12/28/17

DOCKET NO.  14-07 067A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased rating for left knee chondromalacia patella and osteoarthritis (left knee disability).

2.  Entitlement to total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Edwards, Associate Counsel




INTRODUCTION

The Veteran served on active duty from March 1978 to June 1978.

These matters come before the Board of Veterans' Appeals (Board) on appeal from decisions by the St. Petersburg, Florida, Department of Veterans Affairs Regional Office (RO).  An increased rating for the Veteran's left knee disability was denied in a December 2009 rating decision.  The RO took jurisdiction over a claim for TDIU and adjudicated it in the January 2013 Statement of the Case (SOC).  In his March 2014 Substantive Appeal (VA Form 9), the Veteran requested a hearing before a member of the Board, which was scheduled for September 6, 2017.  However, the Veteran failed to appear for the scheduled hearing and did not request that it be rescheduled.  The Board therefore considers the Veteran's request for a Board hearing to be withdrawn.

The issues of entitlement to a TDIU and an increased rating for a left knee disability are REMANDED to the Agency of Original Jurisdiction (AOJ).


REMAND

The Veteran asserts that he is entitled to an increased rating for his service-connected left knee disability or, in the alternative, separate ratings for instability and effusion because his condition has grown substantially worse.  The Veteran also maintains that he is entitled to TDIU as a result of his left knee disability which is currently rated at 10 percent disabling.

The Veteran reported that he could not walk more than 10 feet without a cane or walker and that he needed to use a cane and knee brace because his left knee "gives out."  In support of his claim, the Veteran stated that he resides at a VAMC nursing facility and has used a wheelchair since 2010.

In addition to his left knee disability, the Veteran suffers from many nonservice-connected disabilities.  In February 2008, the Social Security Administration declared the Veteran to be disabled and listed congestive heart failure, diabetes, morbid obesity, sleep apnea, arthritis and hypertension among his severe impairments.

On remand, the Veteran should be provided with an appropriate VA examination to determine the functional impact of his service-connected disabilities. 

Where the functional impact of the Veteran's service-connected and nonservice-connected disabilities are currently unclear, this issue of a TDIU must be remanded for further development.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA and private treatment records related to the claim on appeal. 

2.  Schedule the Veteran for an appropriate VA examination(s) to evaluate the functional impact of his service-connected disabilities.

If possible, the examiner should identify (or provide examples of) the types of employment that would be inconsistent with the functional impairment of the Veteran's service-connected disabilities alone, and any types of employment that would remain feasible, despite the functional impact of his service-connected disabilities. 

The examiner should thoroughly review the claims file and consider the Veteran's lay statements in forming an opinion.

A complete rationale should accompany any opinion provided.  If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so.

3.  Readjudicate the claim after the development requested above has been completed.  If any benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and return the appeal to the Board.

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 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 (2012).



______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs