Citation Nr: 0814549 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-03 817A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 20 percent for service-connected right knee postoperative degenerative joint disease. ATTORNEY FOR THE BOARD K. Curameng, Associate Counsel INTRODUCTION The veteran had active duty service from April 1988 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran's notice of disagreement was received in November 2004. A statement of the case was issued in December 2005, and a substantive appeal was received in February 2006. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The present appeal involved the evaluation of the veteran's service-connected right knee disability. A May 2007 VA examination report requires clarification. In the section of the report for noting clinical findings, the examiner reported no laxity of the right knee. However, in the section for reporting the assessment, the examiner referred to right knee strain with obvious clinical instability on examination. At the present time, the right knee is rated based on limitation of motion criteria. However, separate ratings may be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. Clarification is therefore necessary to fully assist the veteran with her appeal. Accordingly, the case is REMANDED for the following actions: 1. The veteran should be scheduled for a VA examination of the right knee. The claims file should be made available to the examiner for review in connection with the examination. Range of motion should be reported along with the point (in degrees) where motion is limited by pain. The examiner should also report any additional functional loss due to weakness, fatigue, and/or incoordination, to include additional functional loss to be expected during flare-ups. The examiner should also clearly report whether there is recurrent subluxation or lateral instability of the right knee and, if so, whether it is slight, moderate, or severe. 2. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issue on appeal. The RO should specifically determine whether a separate rating for recurrent subluxation or lateral instability of the right knee is warranted. The RO should issue an appropriate supplemental statement of the case, and give the veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ ALAN S. PEEVY 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).