Citation Nr: 1008698	
Decision Date: 03/08/10    Archive Date: 03/17/10

DOCKET NO.  06-23 431	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUES

1.	Entitlement to a higher rating for residuals, fracture 
right proximal tibia with relaxation of lateral collateral 
ligaments, currently evaluated as 30 percent disabling.

2.	Entitlement to a higher rating for right knee limitation 
of motion, currently evaluated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty from March 1957 to March 
1963.         

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Winston-Salem, North Carolina, which denied a rating higher 
than 30 percent for the residuals of a fracture, right 
proximal tibia, with relaxation of the lateral collateral 
ligaments. 

The Board previously remanded this case in January 2009, 
primarily to arrange for the Veteran to undergo a VA medical 
examination. The requested examination was completed on 
remand. Thereafter, a September 2009 RO rating decision 
awarded a separate 10 percent rating for right knee 
limitation of motion, effective June 17, 2009. See 38 C.F.R. 
§ 4.14 (under the VA rating schedule, separate ratings may be 
granted for distinct manifestations, provided not 
contravening the principle against evaluating the same 
disability under different diagnoses).

For the reason indicated below, the appeal is again REMANDED 
to the RO via        the Appeals Management Center (AMC), in 
Washington, DC. VA will notify the Veteran if further action 
is required.


REMAND

Unfortunately, the Board does not have the complete record 
before it in order to make a reasoned decision in this case. 
The Board had remanded this case for            the Veteran 
to undergo a VA Compensation and Pension examination. By all 
indication, including as explained in the RO's September 2009 
Supplemental Statement of the Case (SSOC), the requested VA 
examination took place on      June 17, 2009. As for the 
actual examination report, however, this is not on file.  The 
Board must have an adequate record before it to issue a 
comprehensive decision. As a matter of due process, the June 
2009 VA examination report should be obtained and associated 
with the record. A remand of this case is required for this 
purpose. 

Accordingly, the case is REMANDED for the following action:

1.	The RO should obtain a complete copy of 
the report of the Veteran's June 17, 2009 
VA Compensation and Pension examination, 
and then associate this examination report 
with the claims file.  Any additional 
outstanding records of pertinent treatment 
or examination should also be obtained. 

2.	The RO should then review the claims 
file. If any of  the directives specified 
in this remand have not been implemented, 
appropriate corrective action should be 
undertaken before readjudication. Stegall 
v. West, 11 Vet. App. 268 (1998).

3.	Thereafter, the RO should readjudicate 
the claims on appeal based upon all 
additional evidence received. If any 
benefit sought on appeal is not granted, 
the Veteran and his representative should 
be furnished with a Supplemental Statement 
of the Case (SSOC) and afforded an 
opportunity to respond before the file is 
returned to   the Board for further 
appellate consideration.

The Veteran has the right to submit additional evidence and 
argument on the matters the Board has remanded. Kutscherousky 
v. West, 12 Vet. App. 369 (1999).

	(CONTINUED ON NEXT PAGE)




These claims 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. 2009).





_________________________________________________
DENNIS F. CHIAPPETTA
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) (2009).