Citation Nr: 21010277 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-20 871 DATE: February 24, 2021 REMANDED Entitlement to a rating in excess of 20 percent for right knee disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a rating in excess of 10 percent for headaches is remanded. Entitlement to a compensable rating for recurrent cysts is remanded. Entitlement to a compensable rating for residuals of fracture, right little finger, is remanded. Entitlement to a rating greater than 50 percent for sleep apnea is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1974 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2018 in which the Board remanded the claims currently on appeal for further development. The Board also denied the Veteran’s claims of service connection for diabetes mellitus, a back disability, and a bilateral eye disability; and, the Board denied claims for increased ratings for residual scars of the right and left knees, and sinusitis/status post polypectomy. As there is no indication from the record that the Veteran has appealed the Board’s decision, these claims are no longer on appeal. The Board’s September 2018 decision also granted the Veteran’s claim of service connection for depression which was promulgated in a June 2020 rating decision. However, the Veteran appealed this decision under the modernized review system and requested a Higher-Level Review. In this regard, the Board notes that the Appeals Modernization Act (AMA) created a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The AMA became effective on February 19, 2019. The AMA modernized review system applies to all claims for which VA issues a notice of an initial decision on or after the February 19, 2019 effective date of the modernized review system. The AMA may also apply to claims where the claimant has elected review of a legacy claim under the modernized review system. 38 C.F.R. §§ 3.2400, 19.2. A legacy claim is a claim for which VA provided notice of an initial decision prior to the February 19, 2019 effective date of the AMA modernized review system. 38 C.F.R. §§ 3.2400, 19.2. Here, the Veteran’s claims originated as legacy claims and were adjudicated in March and September 2014 rating decisions. The Veteran was notified of the decisions in 2014, prior to the effective date of the AMA, and he properly appealed the decisions under the legacy system by filing a notice of disagreement (NOD) on VA Form 21-0958 and a Substantive Appeal. See 38 C.F.R. §§ 3.2400, 19.2, 20.201. Moreover, the Veteran did not elect to participate in the modernized review system within the necessary timeframe after issuance of the April 2020 supplemental statement of the case (SSOC). See 38 C.F.R. §§ 3.2400, 3.2500, 19.2. Therefore, the Veteran’s claims are within the legacy system. The Board notes, however, that the Veteran received notification of the June 2020 decision after the AMA effective date; thus, the Veteran’s appeal of this decision is subject to the modernized review system. Therefore, as the Veteran has appealed the June 2020 decision with regard to the effective date and assigned evaluation of service-connected depression, this claim is in a separate appeal stream under the AMA and is not currently before the Board. As explained above, his remaining claims are legacy claims and will be adjudicated under the legacy system in the decision herein. In June 2020 and November 2020, the Veteran’s attorney requested an extension of time to submit additional evidence and/or argument. Both extension requests were granted in October 2020 and January 2021, respectively; however, no additional argument or evidence has been received. Therefore, as the requested time period has elapsed, the Board will proceed with adjudication of the claims. 1. Entitlement to a rating in excess of 20 percent for right knee disability is remanded. In a January 2018 VA orthopedic surgery consult, the Veteran was diagnosed with severe degenerative joint disease (DJD) of the right knee. At that time, x-rays showed near bone-to-bone lateral compartment and the examiner advised that knee replacement surgery would be likely within a year. In a March 2019 written correspondence, the Veteran reported that he was due to have a right knee replacement; and an April 2019 VA treatment record shows that inquiry was made as to whether the Veteran was cleared for right knee surgery. The Board notes, however, that the record does not contain treatment records after June 2019. These outstanding records are necessary to determine the current severity of the Veteran’s right knee disability, to include any proposed right knee surgery or whether surgery was completed. Therefore, remand is warranted to obtain the Veteran’s outstanding treatment records. In addition, in his January 2018 orthopedic consult, the examiner referred the Veteran to physical therapy; and, a September 2018 VA orthopedic note shows the Veteran saw a private clinician for physical therapy. The Board notes that VA has not attempted to retrieve these records; therefore, the AOJ should obtain the Veteran’s outstanding private treatment records. 2. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. 3. Entitlement to a rating in excess of 10 percent for headaches is remanded. 4. Entitlement to a compensable rating for recurrent cysts is remanded. 5. Entitlement to a compensable rating for residuals of fracture, right little finger, is remanded. 6. Entitlement to a rating greater than 50 percent for sleep apnea is remanded. The evidence shows that the Veteran receives disability benefits from the Social Security Administration (SSA). While a decision from the Social Security Administration is not binding on VA, the records held by SSA may be relevant to the Veteran’s claims on appeal. See 38 U.S.C. § 5103A (c)(1)(C); 38 C.F.R. § 3.159 (c)(2); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). As any outstanding SSA records may be relevant to the matters on appeal, the AOJ should undertake appropriate action on remand to obtain these records. 7. Entitlement to a TDIU is remanded. The Veteran’s claim for TDIU is inextricably intertwined with his increased rating claims; therefore, the issue of entitlement to TDIU must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records and associate them with the Veteran’s claims folder. 2. Obtain any outstanding private treatment records, to include the Veteran’s physical therapy records from 2018. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Contact the SSA and obtain any decisions and records pertinent to the Veteran’s claim for SSA disability benefits, to include any medical records concerning that claim. All efforts to obtain the records should be fully documented, and a negative response should be requested if no records are available. 4. Then, schedule the Veteran for a VA examination to determine the current severity of the Veteran’s right and left knee disabilities. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his right knee symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. A full and complete rationale must be provided for any opinion offered. 4. Further develop the claims to the extent necessary, to include, providing VA examinations if warranted. 5. After the above development has been completed, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, Associate 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.