Citation Nr: 1304155 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 09-11 194A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether the reduction for the disability rating for right knee strain with osteoarthritis from 30 percent to 10 percent effective May 1, 2008, was proper. 2. Entitlement to an increased disability rating for right knee strain with osteoarthritis, currently rated 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1991 to September 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal originally from a March 2008 determination by a Regional Office (RO) of the Department of Veterans Affairs (VA), which reduced the Veteran's disability rating from 30 percent to 10 percent for service-connected right knee strain with osteoarthritis, effective May 1, 2008. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In a January 2006 rating decision, the RO granted the Veteran a rating of 30 percent for right knee strain with osteoarthritis, based on the results of a VA examination conducted in November 2005. Thereafter, the Veteran underwent a VA examination in August 2007. In the March 2008 rating decision on appeal, the RO reduced the Veteran's disability rating from 30 percent to 10 percent, effective May 1, 2008, based on the August 2007 examination. The Veteran submitted an April 2008 notice of disagreement to that rating decision and he was provided a statement of the case. However, the issue listed on the statement of the case was characterized as an increased rating claim (as opposed to the propriety of the reduction, which is a distinct matter from an increased rating claim). Consequently, the Veteran has not been informed about the specific statutes and regulations governing a claim contesting the reduction of his disability rating from 30 percent to 10 percent. Therefore, before the Board may adjudicate this claim, he must be provided with this relevant information. Although a reduction issue is separate from an increased rating issue, in the instant case the Veteran has been led to believe that it is an increased rating issue on appeal. Moreover, the Veteran's communications have conveyed his belief that a rating much higher than 10 percent is warranted. It is therefore arguable that the Veteran is also advancing a claim for an increase rating. In this regard, the Veteran has maintained that his right knee disability has worsened in severity to warrant a rating in excess of 10 percent. The Veteran last underwent a VA examination in August 2007. Since then, the Veteran underwent arthroscopy and chondroplasy surgery of the right knee in July 2009. (A temporary evaluation of 100 percent was assigned effective July 23, 2009 based on surgical treatment necessitating convalescence). Where there is evidence of a material change in the Veteran's condition, or when the Veteran asserts that the service-connected disability in question has undergone an increase in severity since the time of his last VA examination, the prior VA examination report may be inadequate for rating purposes and a new VA examination is required. 38 C.F.R. § 3.327(a); See Snuffer v. Gober, 10 Vet. App. 400, 402 -03 (1997). Accordingly, the case is REMANDED for the following actions: 1. The RO should take appropriate action to add to the claims file any VA and/or private medical records of ongoing treatment for the right knee. 2. The Veteran should be scheduled for an appropriate VA examination to ascertain the current severity of his right knee disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All indicated studies, tests, and evaluations deemed necessary by the examiner should be performed. All results of any such studies, tests, or evaluations must be included in the examination report. Examination findings should be clearly reported to allow for application of VA's rating criteria for right knee disabilities. 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5256-5262. The examiner should report range of motion of the right knee and indicate (in degrees) the point at which pain is elicited. The examiner should also report any additional functional loss due to weakness, fatigue or incoordination, including during flare-ups. The examiner should also report whether there is evidence of recurrent subluxation or lateral instability of the right knee and, if so, whether it is slight, moderate or severe. 3. After undertaking any other development deemed appropriate, the RO should review the expanded record and adjudicate the issue of the propriety of the reduction from 30 percent to 10 percent and also adjudicate the issue of an increased rating for right knee disability. The Veteran and his representative should be furnished a supplemental statement of the case (which includes pertinent laws and regulations for both the reduction and the increased rating issues) and an analysis of both such issues. After an opportunity to respond, the case should be returned to the Board for further review. 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). This claim 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. 2012). _________________________________________________ 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) (2012).