Citation Nr: 0813176	
Decision Date: 04/22/08    Archive Date: 05/01/08

DOCKET NO.  04-40 456	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUE

1.  Entitlement to an increased rating in excess of 20 
percent for right knee anterior cruciate ligament injury. 

2.  Entitlement to an increased rating in excess of 10 
percent for left knee chondromalacia of the patella with 
productive changes. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

L. Jeng, Associate Counsel


INTRODUCTION

The veteran had active duty from August 1992 to July 1994.  

This matter comes before the Board of Veterans' Appeals 
(Board) from rating decisions in March 2004 and June 2007 of 
a Department of Veterans Affairs (VA) Regional Office (RO).  
In February 2008, the veteran appeared at a hearing at the RO 
before the undersigned. 

The issue of an increased rating in excess of 10 percent for 
left knee chondromalacia of the patella with productive 
changes is addressed in the REMAND portion of the decision 
below and is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.


FINDING OF FACT

At his February 2008 hearing, prior to promulgation of a 
decision in the appeal, the veteran requested to withdraw the 
claim for an increased rating in excess of 20 percent for 
right knee anterior cruciate ligament injury. 


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal by the 
appellant have been met for the claim for an increased rating 
in excess of 20 percent for right knee anterior cruciate 
ligament injury.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. 
§§ 20.202, 20.204 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, 
which fails to allege specific error of fact or law in the 
determination being appealed.  A Substantive Appeal may be 
withdrawn in writing at any time before the Board promulgates 
a decision or on the record at a hearing.  38 C.F.R. 
§ 20.202.  Withdrawal may be made by the appellant or by his 
or her authorized representative.  38 C.F.R. § 20.204.  At 
his hearing in February 2008 travel board hearing, the 
veteran withdrew his claim for an increased rating in excess 
of 20 percent for right knee anterior cruciate ligament 
injury and, hence, there remains no allegations of errors of 
fact or law for appellate consideration of this issue.  
Accordingly, the Board does not have jurisdiction to review 
this claim and it is dismissed.

Accordingly, the Board does not have jurisdiction to review 
the appeal and it is dismissed.

ORDER


The appeal as to an increased rating in excess of 20 percent 
for right knee anterior cruciate ligament injury is 
dismissed.


REMAND

Review of the record shows that in a December 2007 
correspondence and at the February 2008 hearing, the veteran 
disagreed with the June 2007 rating decision which continued 
the 10 percent disability evaluation for left knee 
chondromalacia patella with productive changes.  The RO has 
not issued the veteran a statement of the case (SOC) that 
addresses this issue, therefore a remand is necessary to 
correct this procedural deficiency.  38 U.S.C.A. § 7105 (West 
2002); 38 C.F.R. §§ 19.26, 19.29, 19.30 (2007), Manlincon v. 
West, 12 Vet. App. 238 (1999).


During the pendency of this appeal, the United States Court 
of Appeals for Veterans Claims (Court) issued a decision in 
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) pertinent to 
increased rating claims.  According to that decision, section 
5103(a) requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Further, if the 
Diagnostic Code under which the claimant is rated contains 
criteria necessary for entitlement to a higher disability 
rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  A letter complying with the requirements set 
forth above should be should be sent to the veteran for his 
claim for an increased rating in excess of 10 percent for 
left knee chondromalacia of the patella with productive 
changes. 





Additionally, at the February 2008 hearing, the veteran 
indicated that he received treatment once a year at the La 
Jolla, California VA medical center (VAMC).   Because VA is 
on notice that there may be additional records that may be 
applicable to the veteran's claim and because these records 
may be of use in deciding the claim, these records are 
relevant and should be obtained.  38 C.F.R. § 3.159(c)(2) 
(2007); Bell v. Derwinski, 2 Vet. App. 611 (1992). 

VA's duty to assist includes a duty to provide a medical 
examination or obtain a medical opinion only when it is 
deemed necessary to make a decision on the claim. 38 U.S.C.A. 
§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007); 
Robinette v. Brown, 8 Vet. App. 69 (1995).  As the veteran 
has not been given a current examination for this left knee, 
he should be afforded an examination to determine the current 
severity of his service-connected left knee disability. 

Accordingly, the case is REMANDED for the following action:

       1.  The RO/AMC shall provide the veteran with a notice 
letter that:
*	informs him of the information and 
evidence not of record that is 
necessary to substantiate his claim 
for an increased rating in excess of 
10 percent for left knee 
chondromalacia of the patella with 
productive changes; 
*	informs him of the information and 
evidence that VA will seek to 
provide; 
*	informs him of the information and 
evidence he is expected to provide; 
*	requests him to provide any evidence 
in his possession that pertains to 
his claim; 
*	advises him of the criteria for 
establishing a disability rating and 
effective date of award; 
*	notifies him that, to substantiate 
his claim, he must provide, or ask 
the Secretary to obtain, medical or 
lay evidence demonstrating a 
worsening or increase in severity of 
his service-connected left knee 
chondromalacia of the patella with 
productive changes and the effect 
that worsening has on his employment 
and daily life;  
*	provides him with the appropriate 
Diagnostic Codes for rating service-
connected left knee chondromalacia of 
the patella with productive changes; 
and 
*	notifies him that, should an increase 
in disability be found, a disability 
rating will be determined by applying 
relevant Diagnostic Code provisions, 
which typically provide for a range 
in severity of a particular 
disability from noncompensable to as 
much as 100 percent (depending on the 
disability involved), based on the 
nature of the symptoms of the 
condition for which disability 
compensation is being sought, their 
severity and duration, and their 
impact upon employment and daily 
life.

2.	Obtain all of the veteran's medical 
records reflecting treatment for left 
knee disability from the VA facility in 
La Jolla, California.  All efforts to 
obtain VA records should be fully 
documented, and the VA facility must 
provide a negative response if records 
are not available. 

3.	Schedule the veteran for an orthopedic 
examination to determine the current 
severity of his service- connected left 
knee disability.  The claims file 
should be made available to the 
examiner for review in conjunction with 
the examination.  The examiner's report 
should set forth all current 
complaints, findings, and diagnoses.  
The report should specifically address 
whether the veteran's left knee 
disability is manifested by locking or 
instability and if the veteran requires 
a knee brace.  The report should 
include range-of-motion findings and 
findings as to any weakness.  The 
report should discuss the presence or 
absence of pain, as well as functional 
impairment.

4.	Then, after ensuring any other 
necessary development has been 
completed, the RO should furnish the 
veteran with an SOC as to the issue of 
an increased rating in excess of 10 
percent for left knee chondromalacia of 
the patella with productive changes.  
The RO should also inform the veteran 
of the requirements necessary to 
perfect an appeal.  38 C.F.R. § 19.26 
(2007).  If and only if the veteran 
perfects his appeal by timely 
submitting a substantive appeal, should 
this issue be returned to the Board for 
further appellate review. 

The veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded.  
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).




______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs