Citation Nr: 21007199
Decision Date: 02/09/21	Archive Date: 02/09/21

DOCKET NO. 16-21 278
DATE: February 9, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for left knee disability is remanded.

Entitlement to an initial separate rating prior to October 8, 2020, and since then in excess of 40 percent rating for left knee limitation of extension disability is remanded.

Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Air Force from August 1981 to August 2001. 

During the pendency of the present appeal, the Agency of Original Jurisdiction (AOJ) awarded a separate 40 percent rating for left knee limitation of extension, effective from October 8, 2020.  See October 2020 rating decision.  Because less than the maximum available benefits for schedular ratings was awarded and because the separate rating was not awarded for the entirety of the claims period, the claim remain before the Board.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993).

1. Entitlement to a rating in excess of 10 percent for left knee limitation of flexion disability is remanded.

2.  Entitlement to an initial separate rating prior to October 8, 2020, and since then in excess of 40 percent rating for left knee limitation of extension disability is remanded.

The Veteran seeks higher ratings for his left knee disability, currently rated based on limitation of flexion and limitation of extension.  Additional treatment records from MacDill Air Force Base medical facility show that the Veteran was scheduled for left knee surgery on April 13, 2020; however, during his October 2020 VA knee examination the Veteran reported that he underwent that surgery later in May 2020.  The record only contains treatment records from the MacDill Air Force Base medical facility dated through May 19, 2020, and those records do not contain a left knee surgery note or any follow-up left knee surgery notes.  The Board finds that a remand is needed to update the claims folder with the Veteran’s treatment records from MacDill Air Force Base medical facility dated from May 2020 to the present. 

3. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.

During his October 2020 VA knee examination, the Veteran reported that he was no longer working and that his left knee disability had impacted his ability to work.  As such, the derivative issue of entitlement to TIDU has been raised by the record, and it has been added to the issues on appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).   On remand, the RO should undertake any development necessary to adjudicate a claim for entitlement to a TDIU.

The matters are REMANDED for the following action:

1. Obtain the Veteran’s medical records from medical facilities at MacDill Air Force Base from May 2020 to the present.  Document all requests for information as well as all responses in the claims file.

2.  Send the Veteran proper notice on how to substantiate the claim for TDIU and provide him with an Application for Increased Compensation based on Unemployability (VA Form 21-8940). 

 

 

K. J. ALIBRANDO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Murray, Counsel

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.