Citation Nr: 0815123	
Decision Date: 05/07/08    Archive Date: 05/14/08

DOCKET NO.  07-12 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to a rating in excess of 20 percent for a left 
knee disability. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant







ATTORNEY FOR THE BOARD

C. C. Dale, Associate Counsel


INTRODUCTION

The veteran had active duty service from May 1965 to November 
1965.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an August 2006 rating decision by a 
Regional Office (RO) of the Department of Veterans Affairs 
(VA).

The veteran was afforded a March 2008 Travel Board hearing 
before the undersigned Veterans Law Judge. A copy of the 
transcript is associated with the record. During the hearing, 
the veteran raised a claim of service connection for a right 
knee disability as secondary to his service connection left 
knee disability. The RO has not adjudicated this claim and it 
is REFERRED to the RO for appropriate action.

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 veteran argues that his disability has worsened since it 
was last examined by VA in July 2006. Because the veteran is 
competent to report such worsening of symptoms, the claim 
will be remanded for an additional examination. 

The veteran's representative expressed concern over whether 
the VA examiner conducting the July 2006 examination 
adequately checked the veteran's knee for instability. The 
examination report does not reflect that the examiner used a 
goniometer to evaluate the veteran's knee instability. While 
the Board is not required to direct new examinations simply 
because of the passage of time, VA's General Counsel has 
indicated that a new examination is appropriate when the 
record demonstrates or the claimant asserts that the 
disability in question has undergone an increase in severity 
since the time of the last examination.  VAOPGCPREC 11-95 
(April 7, 1995).  

In light of the veteran's assertions that his left knee 
disability has worsened in severity, the July 2006 VA 
examination is inadequate for evaluating the veteran's 
current level of impairment, and a re-examination is 
necessary to verify whether there has been a material change 
in the veteran's left knee disability. 38 C.F.R. § 3.327(a). 
Therefore, the Board finds that it is necessary to remand 
this claim for a VA examination to determine the current 
nature and extent of the veteran's service-connected left 
knee disability and to afford the RO an opportunity to review 
this evidence. See 38 C.F.R. § 3.159(c)(4) (2007).

Accordingly, the case is REMANDED for the following action:

1. The RO should make arrangements for the 
veteran to be afforded an examination to 
determine the current nature and extent of 
his service connected left knee 
disability.  All necessary tests and 
studies should be performed.  The claims 
folder, including any newly obtained 
evidence, and a copy of this remand, must 
be sent to the examiner for review.  The 
examiner should summarize the medical 
history of the service-connected left knee 
disability; describe any current symptoms 
and manifestations; and specifically, the 
examiner should address the veteran's 
complaints of instability.

2. Thereafter, the RO should review the 
claims file to ensure that all of the 
foregoing requested development has been 
completed to the extent possible.  In 
particular, the RO should review the 
requested examination report to ensure 
that they are responsive to and in 
complete compliance with the directives of 
this remand and if they are not, the RO 
should implement corrective procedures.  
Stegall v. West, 11 Vet. App. 268 (1998).

3. After completion of the above, and any 
additional development of the evidence, 
the RO should review the record, to 
include all additional evidence, and 
readjudicate the claim.  If any benefits 
sought remain denied, the veteran and his 
representative should be issued an 
appropriate supplemental statement of the 
case, and afforded the opportunity to 
respond.  The case should then be returned 
to the Board for further appellate review, 
if otherwise in order.

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).




_________________________________________________
VITO A. CLEMENTI
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) (2006).