Citation Nr: 21075780 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-17 957 DATE: December 21, 2021 REMANDED 1. Entitlement to a rating in excess of 50 percent prior to May 3, 2018 and 70 percent thereafter for post-traumatic stress disorder (PTSD) is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee strain with arthritis is remanded. 3. Entitlement to a rating in excess of 10 percent rating for right knee instability is remanded. 4. Entitlement to a compensable rating for right ear hearing loss is remanded. 5. Entitlement to an award of a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent prior to May 3, 2018 and 70 percent thereafter for PTSD 2. Entitlement to a rating in excess of 10 percent for right knee strain with arthritis 3. Entitlement to a rating in excess of 10 percent for right knee instability 4. Entitlement to a compensable rating for right ear hearing loss 5. Entitlement to TDIU The Veteran has qualifying service on active duty from May 1996 to August 1996 and December 2003 to September 2004. This matter returns to the Board of Veterans' Appeals (Board) after the Board's July 2020 remand (Board Remand) of the Veteran's appeal of the May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). In this rating decision the AOJ granted the Veteran's claim for entitlement to service connection for PTSD with mood disorder at a 50 percent rating level, his claim for right knee strain at a 10 percent disability level, and his claim for right ear hearing loss at a noncompensable disability rating level, all effective August 30, 2012. The Veteran filed a timely appeal seeking higher ratings for each of these disabilities. See December 2013 Notice of Disagreement (NOD); May 2015 Substantive Appeal (VA Form 9). During the appellate period, the Veteran was granted an increased rating to 70 percent, effective May 4, 2018, for his PTSD with mood disorder. The July 2020 Board remand noted that while the Veteran did file a timely and adequate NOD the AOJ did not issue a Statement of the Case (SOC) and that the claims file did not contain a Certification of Appeal (VA Form 8) for the current issues on appeal. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.24(b)(5), 19.29, 19.35; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), Archbold v. Brown, 9 Vet. App. 124, 132-133 (1996). The Board remanded the matter to correct these procedural deficiencies and to afford the Veteran new VA examinations related to his right knee strain and right ear hearing loss disabilities. He was provided a new VA examination for his right knee disability in October 2020, and a new VA audiological examination for his right ear hearing loss in November 2020. In compliance with the July 2020 Board remand, an SOC as to the aforementioned claims was issued in February 2021. In March 2021 VA was notified that the SOC was returned to sender and not delivered to the Veteran. In April 2021, VA contacted the Veteran by telephone. The Veteran provided VA with an updated address and was notified that VA would send out an SOC to the new address. However, a review of the claims file does not document that an SOC was ever sent to the new address. As the Veteran has not properly been sent the SOC, an additional remand is necessary to send the Veteran an SOC to his corrected address. In a February 2021 rating decision, the Veteran was granted service connection and a new disability rating for a right knee instability disability (Diagnostic Code 5003-5257), at a 10 percent rating level, effective October 30, 2020, which is the date of his VA examination which first identified this new diagnosis. However, as this does not constitute a complete grant of the benefits sought, the matter remains on appeal, and the Board has recharacterized the issues related to the right knee accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). Finally, although the AOJ did not certify the issue of entitlement to an award of TDIU as part of this appeal the Board finds that the issue has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran stated in his May 2018 VA psychological evaluation that he was fired from last job for poor attitude, and he has not worked for the last year. He also stated that his at home productivity and reliability are poor. Throughout the claims file, the Veteran has stated that he is socially isolated and irritable. Because the Veteran did not file a direct claim for TDIU the AOJ has not developed the claim of entitlement to a TDIU. The background information needed to adequately and fairly evaluate his entitlement to a TDIU has not been made part of the record. On remand, such development is necessary. As part of the remand the Veteran is asked to complete an application for TDIU (VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability), and provide the requested employment history and other related information. The matters are REMANDED for the following action: 1. Ask the Veteran to clarify his work history and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant regarding a claim for TDIU. The Veteran should be provided a copy of any required forms. Also notify the Veteran that the failure to complete and submit this form may lead to the denial of this benefit. Attach to the file any records received. 2. For each employer identified request appropriate records related to the Veteran's employment. Attach all responses to the Veteran's file. All documents related to VA efforts to obtain records not provided by the employer(s) should be attached to his file. 3. The Veteran is permitted to submit additional evidence or argument to support his claim. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam order). (Continued on the next page) 4. Develop and adjudicate the Veteran's claim for entitlement to TDIU covering the entire appeal period under the provisions of 38 C.F.R. § 4.16 and Rice v. Shinseki, 22 Vet. App. 447 (2009). 5. Send the Veteran and his representative a statement of the case that addresses the issues noted above to the address documented in the April 2021 call to the Veteran. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. A. KENINGER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.