Citation Nr: 1804387 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 17-34 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to higher staged initial evaluations for service-connected left hip, total hip prosthetic replacement, rated as 30 percent for the rating period on appeal prior to June 21, 2016, and 70 percent from June 21, 2016. ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran had active service from September 1979 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction rests with the RO in St. Petersburg, Florida. The September 2015 rating decision, in pertinent part, granted service connection for the Veteran's left hip disability and assigned an initial evaluation of 100 percent from March 8, 2014 and an initial evaluation of 30 percent from February 1, 2015. A February 2016 rating decision continued the 30 percent initial evaluation for the Veteran's left hip disability. Thereafter, a June 2017 rating decision, in part, granted a 50 percent initial evaluation, effective November 3, 2016. Following the Board's September 2017 remand, a November 2017 rating decision assigned an initial evaluation of 70 percent effective June 21, 2016. The issue on appeal has been recharacterized and because the higher evaluation does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's appeal remains for Board consideration. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). In September 2014, the Veteran executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative in favor of Maryland Department of Veterans Affairs. However, in July 2017 correspondence, in response to VA correspondence notifying the Veteran his representative was reviewing his file and preparing written argument on his behalf, the Veteran reported he received the VA correspondence and needed to correct one item. Specifically, he stated he was not represented by a Veterans Service Organization and therefore there should not be a delay in the Board seeing to his appeal. Thereafter, in response to VA correspondence requesting clarification as to his representation, the Veteran, in August 2017, responded that he wished to proceed pro se. Thus, the Board finds the Veteran's August 2017 statement is a revocation of his representative and recognizes the Veteran as proceeding pro se in this appeal. Additionally, the United States Court of Appeals for Veterans Claims has held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. Although the record reflects the Veteran's service-connected left hip disability has resulted in functional impairment, the Veteran has not asserted that he was unemployable due to his service-connected left hip disability at issue in this appeal. Furthermore, the November 2016 hip and thigh disability benefits questionnaire documented the Veteran was employed in an office job. Therefore, the issue of entitlement to a TDIU is not raised in this case. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In November 2017 correspondence, the Veteran identified relevant private medical treatment records from Upper Chesapeake Medical Center. He stated that he had surgery in September 2015 and his disability worsened since that time. While it appears that the Veteran submitted several records from Upper Chesapeake Medical Center in 2016, it does not appear that such records are complete and there are no records dated in September 2015 concerning the left hip surgery. The Board finds that a remand is required to obtain such identified records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran a VA letter, to include the requisite release forms, requesting identification, and authorization for release to VA, of relevant private medical treatment records pertaining to his service-connected left hip disability. The Board is particularly interested in records from the Upper Chesapeake Medical Center pertaining to left hip surgery in September 2015. Thereafter, endeavor to obtained the identified records. If any such medical records are unable to be obtained, the Veteran should be notified of such, and offered the opportunity to submit such records. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, furnish the Veteran a supplemental statement of the case and afford an opportunity to respond before the record is returned to the Board for further review. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ U. R. POWELL 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) (2017).