Citation Nr: 1237891 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 02-16 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE 1. Entitlement to a rating in excess of 10 percent for residuals of a right knee injury including a lateral meniscectomy prior to January 22, 2002. 2. Entitlement to a rating in excess of 30 percent for residuals of a right knee injury including a lateral meniscectomy since January 22, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active duty from August 1977 to August 1983. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied a rating in excess of 10 percent for residuals of a right knee injury including a lateral meniscectomy. In March 2004 and December 2005, the Board remanded the Veteran's claim to the RO for further evidentiary development. In an August 2005 rating decision, the RO assigned a 30 percent disability rating for residuals of a right knee injury including a lateral meniscectomy effective January 22, 2002, the date of the receipt of the claim for an increased rating. Pursuant to Hart v. Mansfield, 21 Vet. App. 505, 510 (2007), VA must consider whether an increased rating is warranted during the one-year period prior to the date of the claim. Hence, the issues are as stated on the title page. In a March 2009 rating decision, the RO granted entitlement to service connection for post-traumatic arthritis of the right knee, and assigned a separate 10 percent disability rating, effective from January 2002. The Veteran did not perfect an appeal to the March 2009 rating decision, and hence, that separate rating is not for appellate consideration. 38 U.S.C.A. § 7105 (West 2002). In November 2009, the Board denied entitlement to a rating in excess of 30 percent for residuals of a right knee injury including a lateral meniscectomy. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In September 2010, the Court granted a joint motion for remand and vacated the November 2009 decision. In September 2011, the Board remanded the claims regarding entitlement to increased ratings for residuals of a right knee injury including a lateral meniscectomy for further development. In an October 2012 post-remand brief, the representative noted that the Veteran had an inability to work on his knees. The representative did not state that the Veteran's right knee disorder alone precluded all forms of substantially gainful employment that are consistent with his education and occupational experience. Hence, the Board finds that the appellant has not raised the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. If the Veteran wants to file a claim of entitlement to a total disability rating based on individual unemployability, he should file one at the RO. 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 In the September 2011 remand, the Board directed pursuant to the joint motion that in the readjudication of the claims, the RO must specifically document their consideration of the question whether the Veteran is entitled to a separate compensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012). In a September 2012 supplemental statement of the case, the RO did not document their consideration of the question whether the Veteran is entitled to a separate compensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5259. Therefore, the RO did not comply with the directives of the September 2011 remand, and further development is required. Stegall v. West, 11 Vet. App. 268 (1998). The residuals of a right knee injury including a lateral meniscectomy are currently rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). In a September 2012 rating decision, the RO separately service connected right knee instability and assigned a separate 10 percent disability rating under Diagnostic Code 5257. That is, the RO has assigned two separate ratings for the right knee disability under Diagnostic Code 5257 in addition to the separate rating for right knee arthritis. The law provides that the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). Hence, the RO must address whether the assignment of two separate ratings for the right knee disability under Diagnostic Code 5257 is pyramiding under 38 C.F.R. § 4.14. The October 2011 VA examiner reported that meniscus disability is or was manifested by frequent episodes of joint "locking," pain, and effusion, but that the current residuals are recurrent pain and a feeling of subluxation. The examiner did not, however, state when "locking," pain, and effusion were shown. Thus, the examiner must prepare an addendum indicating whether and when residuals of a right knee injury, other have been other than post-traumatic arthritis has been manifested by frequent episodes of joint "locking," pain, and effusion since January 2001. VA treatment records reflect that the Veteran underwent an orthopedic consult at the Pittsburgh-University Drive Campus VA Medical Center in March 2009. The RO also last obtained records from the Altoona VA Medical Center and the Johnstown VA outpatient clinic via Virtual VA on September 12, 2012. The RO should obtain all records from the Pittsburgh-University Drive Campus VA Medical Center since March 2009, and any additional records from the Altoona VA Medical Center and the Johnstown VA outpatient clinic since September 12, 2012. Finally, the RO has not asked the Veteran to identify any non-VA treatment for his right knee disability since April 2004 nor has the RO asked that he identify VA treatment for this disability since April 2006. The RO must afford the claimant the opportunity to identify any new sources of private treatment for his right knee. Accordingly, the case is REMANDED for the following action: 1. With respect to his right knee disorder the RO should ask the Veteran to identify all sources of non-VA treatment since April 2004 and all sources of VA treatment since April 2006. Thereafter, the RO should attempt to obtain any identified records not already of record. Regardless of the appellant's response, the RO should obtain all records from the Pittsburgh-University Drive Campus VA Medical Center since March 2009, and any additional records from the Altoona VA Medical Center and the Johnstown VA outpatient clinic since September 12, 2012. Any records obtained should be associated with the Veteran's claims folder. If the RO cannot locate any identified records held by a Federal government entity, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific government records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Thereafter, an addendum to the October 2011 VA examination should be obtained. The claims folder, access to Virtual VA and a copy of this remand, must be provided to and reviewed by the October 2011 examiner as part of the review. If the October 2011 VA examiner is unavailable, the RO should arrange to have claims folder and Virtual VA to be reviewed by another physician. If the October 2011 VA examiner thinks another examination is necessary, the Veteran should be scheduled for one. Following any examination and/or records review, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any right knee disability other than post-traumatic arthritis has been simultaneously manifested by frequent episodes of joint "locking," pain, and effusion at any time since January 2001. If so, when and for how long? A complete rationale for any opinion offered must be provided. 3. The Veteran is to be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After the development requested, the RO should review the addendum to the October 2011 examination report or, if applicable, all examination reports to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. Thereafter, the RO must readjudicate the claims of entitlement to a rating in excess of 10 percent for residuals of a right knee injury including a lateral meniscectomy prior to January 22, 2002; and entitlement to a rating in excess of 30 percent for residuals of a right knee injury including a lateral meniscectomy since January 22, 2002, with consideration of 38 C.F.R. § 3.321 (2012). The RO must specifically document their consideration of the question whether the Veteran is entitled to a separate compensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5259. If the Veteran is not entitled to a separate compensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5259, the RO must provide the basis for its determination. In so doing the RO must document their consideration of 38 C.F.R. § 4.14 (2012). The RO must further reconcile their assignment of separate ratings for the right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257. If any benefit is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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. 2011). _________________________________________________ DEREK R. BROWN 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) (2011).