Citation Nr: 18160348
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 10-11 469
DATE:	December 26, 2018
REMANDED
Entitlement to a separate compensable rating for right knee limitation of motion from March 4, 2013, to April 15, 2013, and from August 1, 2013, to January 26, 2016, is remanded.
Entitlement to an increased rating in excess of 10 percent for limitation of left knee extension for the period from March 4, 2013, to January 26, 2016, is remanded.
Entitlement to an increased rating in excess of 10 percent for right knee lateral instability is remanded.
Entitlement to an increased rating in excess of 20 percent for left knee lateral instability for the period prior to December 4, 2012, and 10 percent thereafter, is remanded.
Entitlement to an increased rating in excess of 20 percent for thoracolumbar strain from March 26, 2008, is remanded.
Entitlement to a compensable increased rating for the right lower extremity radiculopathy prior to March 7, 2011, and in excess of 10 percent thereafter, is remanded.
Entitlement to an increased rating in excess of 10 percent for left lower extremity radiculopathy prior to March 7, 2011, and in excess of 20 percent thereafter, is remanded. 
Entitlement to an increased rating in excess of 10 percent for hemorrhoidectomy residuals prior to January 27, 2016, is remanded.
Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from February 1984 to August 1992. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO, in pertinent part, denied the Veteran’s claims, listed on the order page, of entitlement to increased ratings.
During the pendency of the appeal of the denial of the claims for increased ratings, in September 2015, the Veteran filed an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) indicating that he is unable to secure or obtain gainful employment due to his service-connected disabilities.  Although in May 2016, the RO denied entitlement to a TDIU, the issue is raised as part and parcel of the Veteran’s increased rating claims, as he is seeking the highest ratings and there is evidence of unemployability due to the disabilities for which higher ratings are being sought.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  
In October 2012 and September 2014, the Board remanded the claims on appeal for further development. 
Following the October 2012 remand, in a February 2013 rating decision, the AMC granted compensation under 38 U.S.C. § 1151 for left thigh disability and assigned an initial noncompensable rating, effective in April 2008.  The Veteran appealed the initial rating; and, in the September 2014 remand, the Board remanded for issuance of a Statement of the Case (SOC).  The Veteran perfected his appeal.  In a January 2016 rating decision, the RO assigned an initial rating of 40 percent for the left thigh, effective the date of the Veteran’s claim in April 2008, which is the maximum rating for the disability.  See 38 C.F.R. § 4.73, Diagnostic Code (DC) 5314.  The rating decision informed the Veteran that the action constituted a full grant of the benefit sought.  Hence, the issue of left thigh compensation under 38 U.S.C.§ 1151 is not before the Board and will not be addressed in the decision below.
In a March 2016 rating decision, the RO granted an increased rating from 10 to 20 percent for both the low back and hemorrhoid disabilities, the former effective March 14, 2013, and the latter, January 27, 2016.  The rating decision informed the Veteran that the increased for the hemorrhoids constituted a full grant of benefits. The Veteran has continued his appeal for higher ratings for the earlier portions of the rating periods on appeal. 
In an April 2017 decision, the Board granted a rating not to exceed 10 percent for arthritis, bilateral knees, for period prior to March 4, 2013, and for the period beginning on January 27, 2016; denied a compensable evaluation for limitation of motion (LOM) symptomatology, right knee, for the period March 4, 2013 to April 15, 2013, and from August 1, 2013 to January 26, 2016; granted an evaluation not to exceed 10 percent for LOM on extension, left knee, for period March 4, 2013 to January 26, 2016; denied an increased rating for right knee lateral disability; granted an evaluation not to exceed 20 percent for lateral instability, left knee, for the period prior to December 4, 2012, and 10 percent from that date forward; granted an evaluation not to exceed 20 percent, for the orthopedic manifestations of thoracolumbar spine strain, effective March 26, 2008; granted a separate evaluation of 10 percent, for associated right lower extremity (RLE) lumbar radiculopathy, effective March 7, 2011; granted an evaluation of 20 percent, for associated left lower extremity (LLE) lumbar radiculopathy, effective March 7, 2011; denied a rating higher than of 10 percent for hemorrhoidectomy residuals for the period prior to January 27, 2016; denied a TDIU; and remanded the issues of entitlement to higher ratings for the bilateral knee disability for the period January 27, 2016, forward; and, entitlement to a rating higher than 20 percent for the low back disability for the period March 14, 2013 forward.  The remanded issues are now before the Board.
The Veteran appealed the Board’s April 2017 decision to the United States Court of Appeals for Veterans Claims (Court).
In July 2018, the Court granted a Joint Motion to Terminate the Appeal in Part and Stipulated Agreement, whereby VA General Counsel and the Veteran’s representative agreed to award the Veteran a separate 10-percent disability evaluation for each knee under 38 C.F.R. § 4.71a, Diagnostic Code 5003, for degenerative arthritis of the right and left knees, status-post operative.  The parties made no agreement regarding the applicable effective date: noting that such is matter for initial adjudication by the agency of original jurisdiction, subject to the right of appeal.  In July 2018, the RO implemented the terms of the Stipulated Agreement: granting a separate 10-percent disability evaluation for each knee under 38 C.F.R. § 4.71a, Diagnostic Code 5003, for degenerative arthritis of the right and left knees, status-post operative.  Accordingly, pursuant to the terms of the Stipulated Agreement, these issues are no longer before the Board.
In a July 2018, the Court, on the basis of a Joint Motion for Partial Remand, vacated and remanded the Board’s April 2017 decision to the extent that it denied (1) a separate compensable evaluation for right knee limitation of motion from March 4, 2013, to April 15, 2013, and from August 1, 2013, to January 26, 2016; (2) an evaluation in excess of 10 percent for limitation of left knee extension for the period from March 4, 2013, to January 26, 2016; (3) an evaluation in excess of 10 percent for right knee lateral instability; (4) an evaluation in excess of 20 percent for left knee lateral instability for the period prior to December 4, 2012, and 10 percent thereafter; (5) an evaluation in excess of 20 percent for thoracolumbar strain from March 26, 2008; (6) an evaluation in excess of 0 percent for right lower extremity radiculopathy prior to March 7, 2011, and in excess of 10 percent thereafter; (7) an evaluation in excess of 10 percent for left lower extremity radiculopathy prior to March 7, 2011, and in excess of 20 percent thereafter; and (8) an evaluation in excess of 10 percent for hemorrhoidectomy residuals prior to January 27, 2016.

1.   Entitlement to increased ratings are remanded. 
In a July 2018, the Court, on the basis of a Joint Motion for Partial Remand, vacated and remanded the Board’s April 2017 decision.
The parties to the Joint Motion for Partial Remand agreed, in pertinent part, that the Board failed to ensure that VA satisfied its duty to assist in making reasonable efforts to attempt to obtain relevant records from a Federal department.  See R. at 8-9(1-42); 38 U.S.C. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(2).  Specifically, the parties noted that while VA stated that post-service treatment records from Tinker Air Force Base were received, the documents received in November 2014 appear to only document and summarize treatment records.  The actual treatment records were not received in accordance with 38 U.S.C. § 5103A(c)(1)(C).  As a result, the parties agreed that VA should have attempted to obtain the actual treatment records from Department of Defense (DOD), or explained any “continued efforts” VA undertook to secure the available DoD records.  38 C.F.R. § 3.159(e)(1) (if, after “continued efforts” to obtain Federal records, VA “concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact”). 
The parties agreed that a remand is necessary to ensure that the Board will request the noted above treatment records from the DoD.
In light of the above, a remand is necessary to obtain the aforementioned treatment records from the DoD.
2.  Entitlement to a TDIU is remanded.
The claim for a TDIU is inextricably intertwined with the increased ratings claims being remanded and adjudication will be deferred until that those issues adjudicated.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue).
The matters are REMANDED for the following action:
1.  Pursuant to a July 2018 Joint Motion for Partial Remand, obtain complete post-service treatment records (dated from November 20, 2014 for the period of February 25, 2000 to January 9, 2014) from the Department of Defense (DOD).   A summary of such records is not sufficient to comply with this directive.  If such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e)(1).
2.  Readjudicate the issues on appeal, to include entitlement to a TDIU.
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Castillo, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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