Citation Nr: 0812128 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-26 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for a right knee disability, currently rated as 30 percent disabling. 2. Entitlement to an effective date earlier than June 1, 2006, for the award of a 30 percent disability rating for a right knee disability. ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The veteran served on active duty from April 1987 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) from a July 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted a temporary 100 percent rating for a right knee disability, effective from April 18, 2005 to May 31, 2006, and assigned a 30 percent rating, effective June 1, 2006. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A preliminary review of the record discloses that additional development is needed prior to further disposition of the veteran's claims. With regard to the veteran's claim for an increased rating for a right knee disability, the RO received a notice of disagreement from the veteran in March 2006 as to the 30 percent disability rating assigned in the July 2005 rating decision. Additionally, the veteran indicated in an August 2006 statement that his current right knee disability warranted a 50 percent rating. However, it does not appear from a review of the claims folder that the veteran has been issued a statement of the case on this issue. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2007); Robinette v. Brown, 8 Vet. App. 69 (1995). The veteran in this case was afforded a VA orthopedic examination in July 2005, approximately three months after he underwent right knee replacement surgery. Subsequently, the veteran indicated in an August 2006 statement that as a result of his right knee disability, he has had to alter his entire way of life and is likely to require additional knee replacement surgery in 10-15 years. When available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Here, while the veteran's last VA examination is not necessarily stale, the veteran has indicated that his right knee disability has worsened since the date of the latest examination. Because there may have been a significant change in the veteran's condition, a new examination is in order. Finally, with regard to the issue of entitlement to an effective date earlier than June 1, 2006, for the award of a 30 percent disability rating for a right knee disability, the Board finds that this issue is inextricably intertwined with the veteran's claim for an increased rating for a right knee disability, which is being remanded. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Issue a statement of the case which addresses the issue of entitlement to an increased rating for a right knee disability, currently rated 30 percent disabling. Inform the veteran of his appeal rights. 2. Schedule the veteran for an orthopedic examination to determine the current severity of his service- connected right knee disability. The claims folder should be made available to and reviewed by the examiner, and the examination report should reflect that the claims folder was reviewed. The examination report should set forth all current complaints, findings, and diagnoses. The report should include range of motion findings, instability findings, and should state whether ankylosis is present. The report should address any pain on motion, fatigability, incoordination, excess motion, weakened motion, or limited motion and should state any additional functional impairment, particularly on repetitive motion or with flareup. Finally, the examiner should note all instances of surgical intervention affecting the veteran's right knee. 3. Then, readjudicate the claim for an earlier effective date. If the decision remains adverse to the veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Harvey P. Roberts 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).