Citation Nr: 1032610 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 04-35 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial compensable rating for a right lower extremity neurological disorder (previously considered as a right knee neurological disorder), associated with a right knee disability. 2. Entitlement to an initial rating higher than 20 percent for a right lateral femoral cutaneous nerve neuropathy, associated with a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1959 to May 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for a neurological disorder of the right knee and assigned an initial noncompensable (0-percent) rating for the disability retroactively effective from March 11, 2004, the date of receipt of the Veteran's claim. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating when this occurs VA adjudicators must consider whether the Veteran's rating should be "staged" to compensate him for times since the effective date of his award when his disability may have been more severe than at others). The neurological disorder of the right knee issue was previously before the Board in November 2007 and October 2009, and was remanded for further development. In December 2009, the RO granted the Veteran's claim for right lateral femoral cutaneous nerve neuropathy, associated with a right knee disability. The RO assigned an initial 20-percent rating for the disability retroactively effective from November 18, 2009, the date of the VA examination that established findings sufficient to grant a separate rating. The RO continued the 0-percent rating for the Veteran's neurological disorder of the right knee. See Fenderson, 12 Vet. App. at 125-26. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this matter, a remand is required before the claims can be properly adjudicated. These claims were most recently remanded by the Board in October 2009. Upon review of the claims file, the Board finds that the development directed by the Board in its last remand was not accomplished. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO/AMC was directed by the Board to obtain a medical opinion addressing the current severity of the Veteran's neurological symptoms associated with his right knee disability, to include symptoms in and around the knee itself, in the right lateral thigh to the hip, and in the right lower leg to the foot. The VA examiner was asked to specifically comment on each nerve impairment and whether that impairment results in mild incomplete paralysis, moderate incomplete paralysis, severe incomplete paralysis, or complete paralysis. The VA examiner did not complete this instruction, and therefore this matter must be again remanded. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA neurological examination in order to determine the current severity of any neurological symptoms associated with his right knee disability, to include symptoms in and around the knee itself, in the right lateral thigh to the hip, and in the right lower leg to the foot. The claims file and a copy of this remand must be made available to and reviewed by the examiner, and such review should be noted in the examination report. All necessary tests and studies should be conducted, including but not limited to NCV/EMG studies and MRIs, as applicable. If the Veteran is unable, for any reason, to participate in any part of the examination, such as sensory or motor testing, such should be indicated in the examination report. The examiner is requested to identify the severity of all current neurological conditions that are at least as likely as not (probability of 50 percent or more) associated with the Veteran's service- connected right knee disability. Specifically, the examiner should indicate whether any nerve impairment results in mild incomplete paralysis, moderate incomplete paralysis, severe incomplete paralysis, or complete paralysis. If there is any neurological condition that is not related to the Veteran's right knee disability, the examiner should so state. A complete rationale must be provided for any opinion offered. Specifically, the rationale must reflect consideration of all medical and lay evidence of record, including but not limited to the results of previous diagnostic tests and the Veteran's subjective reports of neurological symptoms. Additionally, the examiner is requested to comment on all medical opinions of record. 2. Upon completion of the above, readjudicate the issues on appeal and consider all evidence received since issuance of the most recent supplemental statement of the case. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER Acting 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).