Citation Nr: 1304665 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-43 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for horizontal medial meniscus tear with articular cartilage damage. 2. Entitlement to an initial compensable rating for left saphenous nerve injury residuals. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from June 1997 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, and a September 2009 rating decision by the RO in Togus, Maine. Jurisdiction rests with the RO in Pittsburgh, Pennsylvania, from which the Veteran's appeal was certified. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the appellant if further action is required. REMAND The complicated procedural history of this case. Service connection for a left knee residual scar was granted in a March 2006 rating decision, and a 10 percent rating assigned. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Within one year of the March 2006 determination, the Veteran did not express disagreement with this initial disability rating, nor did VA physically or constructively receive any relevant new and material evidence, medical or lay, prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2012); see also Buie, supra. As such, the March 2006 rating action is final. Thereafter, in August 2007, the Veteran asserted entitlement to an increased rating for his scar. It appears that based on the Veteran's February 2008 statement and the results of the September 2008 VA examination, a claim for alternate knee disabilities was considered. Ultimately, service connection for left saphenous nerve injury residuals was granted in the November 2008 rating decision, at which time the 10 percent rating for the Veteran's left knee scar was continued. In a March 2009 statement, the Veteran's representative argued that he had other, orthopedic-type symptoms of the left knee and that another examination should be conducted. Based on the May 2009 VA examination's finding of a left knee meniscus tear, but the May 2009 VA examiner's negative opinion as to its nexus to the Veteran's inservice injury, the September 2009 rating decision denied service connection for the left knee meniscus injury. In a January 2010 statement, the Veteran's representative challenged the denial of service connection for the left knee meniscus tear and also requested consideration for a compensable rating for the left saphenous nerve injury residuals under Diagnostic Code 8527 (for nerve damage). However, the October 2010 Statement of the Case only addressed the denial of service connection for left knee meniscus tear. In his November 2010 substantive appeal, the Veteran stated that he was not claiming entitlement to service connection for the left knee meniscus tear, but was claiming entitlement to a compensable rating for left saphenous nerve injury residuals. In the November 2010 VA Form 646, his representative reiterated that argument. However, in the January 2011 informal hearing presentation, the national-level representative appears to suggest that the saphenous nerve injury and the left knee meniscus injury residuals are linked. On this basis, the Board makes two findings. As a threshold issue, it appears that the Veteran intended to notify VA of his disagreement with the initial noncompensable disability rating for his left saphenous nerve injury residuals assigned by the October 2008 rating decision. Although not expressly noted in the March 2009 notice of disagreement, which is stated in more general terms, the January 2010 notice of disagreement, as well as the Veteran's own language in his November 2010 VA Form 9, make it clear that this was the basis of his disagreement. To that end, the record does not reflect that a Statement of the Case has been issued in response to that disagreement. The filing of a notice of disagreement initiates the appeal process. See Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Remand is required so that the Veteran may be issued a Statement of the Case with respect to this issue. See Manlincon v. West, 12 Vet. App. 238 (1999). Further, the January 2011 informal hearing presentation raises the question of whether the Veteran's left saphenous nerve injury residuals and his medial meniscal tear are linked, citing to an article by the American Academy of Orthopedic Surgeons (AAOS) regarding the difficulty of assessing situations wherein these two conditions occur as a result of a single incident. Although this reference does not specifically address the Veteran's situation, it is only for a medical professional, and not the Board, to state an opinion on its relevancy to the Veteran's disability picture. Colvin v. Derwinski, 1 Vet. App. 171 (1991). For that reason, remand is required for an additional nexus opinion on the relationship of the Veteran's medial meniscus tear to his military service. Accordingly, both issues on appeal are REMANDED for the following actions: 1. After physically or electronically associating any pertinent, outstanding records for both issues on appeal, provide a Statement of the Case, and notifying the Veteran of his appellate rights, with respect to the issue of entitlement to an initial compensable rating for left saphenous nerve injury residuals. 38 C.F.R. § 19.26 (2012). In the notice and Statement of the Case, remind the Veteran that to vest the Board with jurisdiction over this issue, a timely substantive appeal to the November 2008 rating decision denying his claim to reopen must be filed. 38 C.F.R. § 20.202 (2012). If the Veteran perfects an appeal as to this issue, return the case to the Board. 2. Forward the Veteran's claims file to a VA examiner and ask that he or she review the claims file, to include the AAOS article discussed above. After that review, the examiner should state whether the Veteran's left medial meniscus tear is at least as likely as not related to the in-service left saphenous nerve injury, and to state the degree of incomplete or complete paralysis resulting from the left saphenous nerve injury. If the examiner finds that one or both of these questions cannot be answered without physically examining the Veteran, a VA examination should be scheduled. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). All findings and conclusions should be set forth in a legible report. 3. Then readjudicate the appeal. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative and an appropriate period of time in which to respond. Then return the appeal to the Board. 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. All claims 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. 2012). _________________________________________________ STEVEN D. REISS 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).