Citation Nr: 1419509 Decision Date: 05/01/14 Archive Date: 05/16/14 DOCKET NO. 04-36 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an extra-schedular evaluation for service-connected right knee disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty from September 1956 to October 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the RO in St. Petersburg, Florida. In January 2008, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) for a travel board hearing. A transcript of the proceeding is of record. In a September 2011 decision the Board denied entitlement to an extra-schedular evaluation for right knee disability and entitlement to TDIU. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's September 2011 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ that conducted the January 2008 hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, the Veteran requested only to have the prior decision vacated and a new one issued in its place. This decision is in accordance with that request. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND Additional evidence (private treatment records pertaining to the right knee dated from January 2011 to August 2013) was received by the Board in November 2013, subsequent to the issuance of the most recent (April 2011) Supplemental Statement of the Case (SSOC). This new evidence has not been reviewed by the AOJ in conjunction with the issues on appeal. The Veteran has not waived AOJ consideration of the additional evidence. Accordingly, the originating agency must be given the opportunity to review this evidence before the Board can enter a decision. 38 C.F.R. § 20.1304(c) (2013). Moreover, the newly submitted evidence shows that the Veteran underwent right total knee arthroplasty in October 2012 and subsequently began physical therapy. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327(a) (2013). Generally, reexaminations are required if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. Here, the Board finds the Veteran should be afforded a new VA examination to document the current severity of his right knee disability and its impact on his ability to work. See 38 C.F.R. § 3.159(c)(4) (2013). Prior to the examination, up-to-date treatment records should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should associate any recent relevant unobtained treatment records with the claims file. All records obtained should be associated with the claims file. 2. Afford the Veteran a VA examination of the right knee and obtain the following medical opinions: a. Is the service-connected right knee disability productive of symptoms other than those contemplated by the schedular rating criteria pertaining to limitation of motion, instability and scarring? Describe all such symptoms. b. What impact does the Veteran's service-connected right knee disability have on his ability to work, to include his ability to maintain substantially gainful employment consistent with his education and industrial background? Rationale for the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. 3. The AOJ should refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether the Veterans disability picture warrants the assignment of an extra-schedular rating. 4. Thereafter, the AOJ should address entitlement to an extra-schedular evaluation for service-connected right knee disability and entitlement to TDIU. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).