Citation Nr: 0810152 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06-08 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an evaluation in excess of 10 percent for residuals of a ruptured quad tendon of the left knee. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from April 1969 to December 1971, December 1990 to May 1991, and September 2001 to August 2002. The veteran had additional service in the Mississippi Army National Guard from November 1980 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The veteran was originally scheduled for a local hearing at the RO in July 2006. He was unable to attend the hearing and asked that it be rescheduled. The hearing was rescheduled for September 11, 2006, and notice was provided in July 2006. The evidence of record shows that the veteran failed to report for his scheduled hearing in September 2006. He has not asked that it be rescheduled. The veteran also requested that he be afforded a Travel Board hearing before a Veterans Law Judge when he submitted his substantive appeal in March 2006. The veteran was scheduled for a hearing in February 2007. The veteran submitted a statement in February 2007 wherein he withdrew his request for a Travel Board hearing. He asked that his claim be decided based on the evidence of record. The Board finds that the veteran's request for a Travel Board has been withdrawn and will conduct its appellate review based on the evidence of record. 38 C.F.R. § 20.704(e) (2007). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The veteran suffered an injury to the quadriceps tendon of the left leg while serving on active duty for training in August 2001. He was given orders to active duty for the period from September 2001 to August 2002 to provide for the necessary treatment and rehabilitation of his injury. The veteran received his surgery and follow-on treatment from the Tupelo Orthopedic Clinic as indicated in their records for the period from August 2001 to September 2002. The veteran submitted his claim for VA disability compensation in September 2003. He was granted service connection for residuals of a ruptured quad tendon of the left knee in July 2004. He was given a 10 percent disability evaluation. The RO rated the disability by using Diagnostic Code 5259. This diagnostic code is used to evaluate disabilities involving symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a (2007). The veteran was afforded a VA examination in July 2004. He was noted to have active range of motion for the left knee of 5 to 95 degrees and passive motion from 0 to 110 degrees. There was no obvious degenerative pathology on x-rays of the left knee. The examiner noted that there was obvious atrophy of the quadriceps muscle. The examiner also said that there was significant disability in the left knee with a marked loss of strength. The veteran's 10 percent disability evaluation was maintained by way of a rating decision dated in August 2004. The same diagnostic code was used to evaluate the veteran's disability. The Board has reviewed the service medical records (SMRs), to include the Tupelo clinic records, and the July 2004 VA examination report for evidence of an impairment related to the cartilage of the left knee. The evidence does not reflect such impairment. The evidence appears to reflect a disability more closely related to a muscle injury, to include a loss of strength, limitation of motion, and atrophy. As the last VA examination was conducted in July 2004, a new examination is required to assess the current level of disability. The examination will also provide for an opportunity to have the examiner detail the characteristics of the veteran's disability and to state whether any cartilage impairment is involved or if the disability can be characterized as a muscle injury. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the veteran to obtain the names and addresses of all medical care providers who have treated him for his left knee disability since September 2003. After securing the necessary release(s), the RO should obtain those records that have not been previously secured. 2. The veteran should be afforded an examination to determine the nature and severity of his service-connected left knee disability. The claims folder must be made available to the examiner, in conjunction with the examination. All necessary tests should be conducted which the examiner deems necessary. The examiner should review the results of any testing prior to completion of the report. The examiner is requested to identify if the veteran's disability involves any impairment of the cartilage of the left knee. The examiner is further requested to state if the veteran's disability involves any muscle group(s) of the left leg. If so, the examiner is requested to identify the muscle group(s) involved in addition to the other information required by the examination. The examiner should provide a complete rationale for any opinion expressed. 3. After undertaking any other development deemed appropriate, the RO should re-adjudicate the issue on appeal, to include consideration of a different diagnostic code in evaluating the veteran's disability. If the benefit sought on appeal is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ S. S. TOTH 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) (2007).