Citation Nr: 18157269 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 13-04 901 DATE: December 12, 2018 REMANDED Entitlement to a disability rating in excess of 60 percent for status post left knee replacement, with osteoarthritis and chondromalacia patella is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disabilities is remanded. INTRODUCTION The Veteran served on active duty from September 1972 to December 1985. In May 2018, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand and returned the case to the Board for action consistent with the joint motion. The Board also acknowledges that by way of the most recent March 2017 Board decision, the issues of entitlement to service connection for a bilateral hand disability, acquired psychiatric disorder, eye disability, and shortness of breath disability, as well as a determination as to whether new and material evidence had been submitted to reopen the claim for a back disability, were remanded to the Agency of Original Jurisdiction (AOJ) for further development; however, the Board’s review of the record reveals that the AOJ has not certified these issues for consideration by the Board and appears to still be taking action on the claims. As such, the Board will not accept jurisdiction over these issues at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. REASONS FOR REMAND The Board is of the opinion that additional development is required before the above-noted claims on appeal are decided. Initially, the Board notes the Veteran last underwent a VA examination to assess his left knee disability in February 2015. However, the examiner did not provide an opinion as to the functional impairments caused by this disability, or state how those impairments would impact the Veteran’s ability to obtain and maintain employment. In the course of the May 2018 joint motion for partial remand, the Court found the issue of entitlement to a TDIU rating had been reasonably raised. In Rice v. Shinseki, the Court held that a request for a TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected. 22 Vet. App. 447, 453 (2009). Based on the foregoing, the Board finds a remand is necessary in order to adequately address this issue. Further, the Board also notes the Veteran has not provided a completed VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. As such, all indicated development should be conducted to obtain additional evidence to support the Veteran’s claim. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s above-noted issues on appeal, to specifically include any more recent treatment records related to the claimed disability. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Also provide all required notice and development relative to the Veteran’s pending appeal for a TDIU rating. In this regard, specifically initiate development to obtain a completed VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability from the Veteran, as well as a VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits to the Veteran’s former employer, if indicated. 3. Thereafter, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of all of the Veteran’s service-connected disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct any required testing or concludes any required testing is not necessary, he or she should clearly explain why that is so. Following the above-noted examinations, the examiner should provide concrete examples of functional impairments caused by the Veteran’s service-connected disabilities. The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. The examiner must discuss and consider the Veteran’s competent lay statements. In addition, the examiner should comment on whether there is a 50 percent or better probability that the Veteran’s service-connected disabilities, either alone or in concert, are sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. In particular, the examiner should state whether the Veteran’s left knee disability alone is sufficient to preclude substantially gainful employment, and if not, whether the Veteran’s combination of service-connected disabilities would be sufficiently disabling as to preclude substantially gainful employment. 4. Finally, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel