Citation Nr: 22012210 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-19 451 DATE: March 2, 2022 REMANDED Entitlement to a compensable rating for residuals of a left hip fracture prior to May 2, 2017, and in excess of 10 percent thereafter, is remanded. Entitlement to a rating higher than 10 percent for residuals of a right heel stress fracture is remanded. Entitlement to a rating higher than 10 percent for residuals of a left heel stress fracture is remanded. Entitlement to a compensable rating for residuals of a right knee stress fracture is remanded. Entitlement to a compensable rating for residuals of a left knee stress fracture is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Preliminary Matters The Veteran served on active duty service from February 1989 to February 1992. This current appeal comes to the Board of Veterans' Appeals (Board) from a July 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during an October 2021 virtual hearing and a transcript is of record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The medical and lay evidence of record suggests that the Veteran in this case may be unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. See e. g., Veteran's testimony during the October 2021 Board hearing; see also May 2017 VA knee and hip examination reports. In light of the Court's holding in Rice, the Board considers the TDIU claim as part of his pending increased rating claims on appeal here and has accordingly added the raised TDIU claim as an issue on appeal. REASONS FOR REMAND The Veteran seeks higher ratings for his service-connected bilateral heel, bilateral knee, and left hip disabilities. The Board notes that additional VA knee, foot, and hip examination reports were associated with the claims file in May 2021, notably after the most recent supplemental statement of the case (SSOC) was issued in May 2017. VA treatment records dated from June 2017 to May 2021 have also been added to the claims file since the May 2017 SSOC. These VA examination reports and VA treatment records addressed the Veteran's heel, knee, and hip symptoms, to include range of motion testing. As this medical evidence was generated by VA, and because the Veteran did not waive initial AOJ consideration of such evidence, a remand is warranted in order to allow the AOJ to review this evidence and issue a SSOC. See generally Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). Moreover, it appears that the AOJ is still developing these claims and a remand is appropriate. See May 2021 rating decision that deferred adjudication regarding higher ratings for the Veteran's disabilities (currently on appeal). Lastly, and as indicated above, a claim for a TDIU has been raised by the record. On remand, the agency of original jurisdiction (AOJ) should send the Veteran proper notice, afford him the opportunity to file a formal claim for TDIU, and then adjudicate this matter in the first instance. The matters are REMANDED for the following actions: 1. Send the Veteran the proper notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. (Continued on the next page) 2. Then, readjudicate the claims on appeal, to include consideration of all evidence received after the most recent May 2017 SSOC. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.