Citation Nr: 0006457 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 94-19 873 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES Entitlement to an increased evaluation for a failed right knee replacement, currently rated as 30 percent disabling. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from November 1945 to November 1946 and from September 1950 to October 1951. This appeal comes to the Board of Veterans' Appeals (Board) from July 1990 and later RO decisions that increased the evaluation for the right knee disability from 20 to 30 percent and denied a total rating for compensation purposes based on unemployability. REMAND The report of the veteran's VA medical examination in October 1997 notes that he has been on Social Security disability since 1974. The medical records in the possession of the Social Security Administration (SSA), and the decision of that agency, are relevant to the claim for a total rating for compensation purposes based on unemployability, and they should be obtained. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In an October 1993 letter, the RO sent the veteran's former employer a VA Form 21-4192 for completion. This information has not been received. Under the circumstances, and to assist the veteran in the development of information with regard to his claim for a total rating for compensation purposes based on unemployability, the veteran should be notified of the non-receipt of this information and given the opportunity to obtain it. 38 U.S.C.A. § 5107(b) (West 1991). The veteran and his wife testified at a hearing in Wilkes Barre, Pennsylvania, in April 1993. A review of the record reveals that the tape of this hearing was lost and is unavailable for transcription, and that the hearing officer prepared a decision based on his notes. In June 1994, the veteran requested another hearing at the Wilkes Barre, Pennsylvania office, and in July 1994 the RO notified him that due process prevented the hearing officer at the Wilkes Barre office from holding another hearing on the veteran's case and that he could have a hearing at the RO in Philadelphia, Pennsylvania. In correspondence dated in July 1994, the veteran notified the RO that he was unable to travel to Philadelphia. Since a transcript of the veteran's original hearing in Wilkes Barre is not available for inclusion in the record, there is some question as to whether or not this hearing may be considered as having been held. In any event, due process requires that the veteran be given another opportunity to present testimony at a hearing at Wilkes Barre and that the Adjudication Officer at the RO should assign a hearing officer or acting hearing officer to hold such a hearing. Veterans Benefits Administration Circular 20-89-11 and revisions. In view of the above, the case is REMANDED to the RO for the following actions: 1. The RO should contact the SSA and obtain copies of all medical records in possession of that agency related to the reported award of SSA disability benefits to the veteran. A copy of that agency's decision regarding the award of disability benefits should also be obtained. 2. The veteran should be notified that a VA Form 21-4192 sent to his former employer for completion was not received, and he should be sent such a form and given the opportunity to obtain the requested information from that employer. 3. The veteran should be scheduled for a personal hearing at the VA facility in Wilkes Barre, Pennsylvania, in accordance with the above-noted instructions. 4. After the above development, the RO should review the claims. If action remains adverse, an appropriate supplemental statement of the case should be sent to the veteran and his representative. The veteran and his representative should be afforded the opportunity to respond to the supplemental statement of the case before the file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. E. Day Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).