Citation Nr: 1304806 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 06-24 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee, limitation of flexion, prior to December 16, 2008. 2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee, limitation of extension, for the period from January 31, 2008 to December 16, 2008. 3. Entitlement to a rating in excess of 20 percent for residuals status post internal derangement of the left knee, prior to December 16, 2008. 4. Entitlement to an effective date earlier than January 31, 2008 for the grant of a separate 10 percent evaluation for limitation of extension of the left knee. 5. Entitlement to a rating in excess of 30 percent for status post left knee replacement with history of internal derangement and arthritis, since December 16, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1980. These matters come before the Board of Veterans' Appeals (BVA or Board) from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that a BVA hearing was scheduled for June 2012; however, the Veteran asked that it be rescheduled. A subsequent hearing was scheduled for December 2012. The Veteran withdrew his scheduled hearing. He has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The issues of entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee, limitation of extension, for the period from January 31, 2008 to December 16, 2008, entitlement to an effective date earlier than January 31, 2008 for the grant of a separate 10 percent evaluation for limitation of extension of the left knee, and entitlement to a rating in excess of 30 percent for status post left knee replacement with history of internal derangement and arthritis, since December 16, 2008 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to December 16, 2008, the Veteran's left knee disability was productive of complaints of pain; objectively, the evidence shows flexion greater than 30 degrees. 2. Prior to December 16, 2008, severe instability of the Veteran's left knee was not demonstrated. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative arthritis of the left knee, limitation of flexion, prior to December 16, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010- 5260 (2012). 2. The criteria for a rating in excess of 20 percent for residuals status post internal derangement of the left knee, prior to December 16, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257(2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify Before addressing the merits of the issues of entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee, limitation of flexion, prior to December 16, 2008 and entitlement to a rating in excess of 20 percent for residuals status post internal derangement of the left knee, prior to December 16, 2008, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in April 2005. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. In July 2008, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating. It is questionable whether the Veteran has been provided with information regarding the type of evidence necessary to establish an effective date. Nevertheless, as the issues being adjudicated above do not deal with effective dates, and the Veteran has not perfected appeals with respect to the effective dates related to these issues, the Board finds this nonprejudicial. With the July 2008 letter, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal. As a matter of law, the provision of adequate notice prior to a readjudication cures any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). After the Veteran was provided the July 2008 notice, the matters were readjudicated in a November 2010 supplemental statement of the case. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VA also has a duty to assist a veteran in the development of the claim. That duty includes assisting a claimant in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and that appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's service treatment records and VA treatment records. The Veteran also submitted personal statements in support of his appeal and private treatment records. No other outstanding evidence has been identified that has not been obtained. Next, prior to December 16, 2008, VA examinations and opinions were obtained in May 2005 and January 2008 with respect to the increased rating claims. The examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and together provide the information necessary to rate his disabilities under the applicable rating criteria. The Board notes that it is arguable that the May 2005 VA examination is inadequate as to his left knee disability because the VA examination did not estimate additional loss of range of motion based on pain (DeLuca factor). However, the Board finds that does not render the report inadequate under the circumstances of this case. Rather, as discussed below, there is other lay and medical evidence of record, which establishes the degree of impairment during flare-ups or after repetitive use, as contemplated by DeLuca. The Board also recognizes the January 2008 VA examiner did not have access to the Veteran's claims file. Nevertheless, the result of the VA examination was consistent with the other evidence of record. As such, the Board finds that the January 2008 VA examination obtained is adequate to adjudicate the Veteran's increased rating claims, despite not being completed in conjunction with the Veteran's claims file. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Board acknowledges that in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). As is the case here, where entitlement to compensation has already been established and an increase in the disability ratings are at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Regarding knee claims, the VA General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. However, when a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. See VAOPGCPREC 23- 97. The General Counsel further held in VAOPGCPREC 9-98 that a separate rating for arthritis may also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Thus, where additional disability is shown, a veteran rated under DC 5257 can also be compensated under DC 5003 and vice versa. Finally, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. The Veteran is service-connected for his left knee. He has appealed the issues of entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee, limitation of flexion, prior to December 16, 2008 and entitlement to a rating in excess of 20 percent for residuals status post internal derangement of the left knee, prior to December 16, 2008. Each is addressed below. Degenerative Arthritis Left Knee, Limitation of Flexion Service connection for degenerative arthritis of the left knee, limitation of flexion, prior to December 16, 2008, was rated at 10 percent disabling pursuant to DC 5010-5260. Degenerative arthritis, established by x-ray findings, will be rated on the basis of limitation of motion under the appropriated diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, DC 5003. DC 5260 provides for the evaluation of limitation of flexion of the knee. See 38 C.F.R. § 4.71a. A 0 percent rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, and a 20 percent rating is warranted when it is limited to 30 degrees. The Board notes that the Veteran is separately rated for limitation of extension (DC 5261), a claim which is being held in abeyance, as discussed below. In this case, a rating in excess of 10 percent based on flexion, prior to December 16, 2008, is not warranted. In a December 2004 VA treatment record it was noted that the Veteran's range of motion was intact. At a May 2005 VA examination, the Veteran demonstrated 90 degrees of flexion. Pain, fatigability and lack of endurance with repetitive range of motion testing were noted. A May 2005 private treatment record reflects that the Veteran's range of motion was limited from 10 to 90 degrees. A December 2005 VA treatment record notes complaints of constant pain in the Veteran's left knee. He reported taking 2-3 Vicodin per day for pain. A July 2006 VA treatment record reflects that the Veteran was contemplating a total knee arthroplasty in the near future. The Veteran reported continuing complaints of pain in his left knee at a July 2007 VA treatment visit. A January 2008 VA examination report reflects flexion of 10 to 95 degrees, with pain beginning at 10 degrees and ending at 95 degrees. Despite pain the Veteran was still able to move his left knee 85 degrees. In considering the appropriate rating, the Board has also considered a functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, an evaluation in excess of the one currently assigned for the Veteran's service-connected left knee disability, limitation of flexion, is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the rating already assigned. Specifically, while the Veteran has complained of pain on movement of the left knee, the evidence does not indicate that such pain limits his ability to function to the point necessary for a higher rating. The Board has also noted the Veteran's complaints of generalized pain in the left knee, regardless of range of motion. However, the mere presence of pain does not, by itself, constitute functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011). Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the rating he currently receives. Overall, as the evidence reflects flexion greater than 30 degrees, despite pain, a rating in excess of 10 percent is not warranted prior to December 16, 2008 for the degenerative arthritis of the left knee, limitation of flexion. Residuals Status Post Internal Derangement- Left Knee Prior to December 16, 2008, the Veteran is also in receipt of a separate 20 percent rating for residuals of status post internal derangement of the left knee, pursuant to DC 5257. He contends that his symptoms are of such severity as to warrant an increased rating. A December 2004 VA treatment record reflects a negative Lachman's and a Drawer's test reflected slight give. It was noted that the Veteran exhibited anterior cruciate ligament laxity of the left knee. The Veteran was ambulatory with a steady gait at a March 2005 VA treatment visit. A May 2005 VA examination reflects that the Veteran was ambulating with a cane. He had grade 1 varus/valgus laxity and a negative Lachman's posterior drawer. At a January 2008 VA examination it was reported that there was no giving way, but there was instability. Physical examination reflected a normal gait and no evidence of abnormal weight bearing. An X-ray taken at that time reflected no evidence of dislocation or subluxation. The evidence above weighs against the assignment of a higher (30 percent) rating under Diagnostic Code 5257. The Board determines that instability characterized by the evidence above is 'moderate' in nature, and severe recurrent subluxation or lateral instability has not been shown. Therefore, a rating in excess of 20 percent is not warranted. The Board has also considered the statements of the Veteran that his disabilities are worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). In this case, the Veteran is competent to report symptoms of his left knee limitation of flexion and residuals of status post internal derangement of the left knee because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his disability when applied to appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's left knee-has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings as provided in the examination reports directly address the criteria under which his disability is rated. In addition, the Board is normally required to consider whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. 38 C.F.R. 3.321(b)(1) (2012). However, the Remand below may shed light on the necessity of referral for consideration of an extraschedular rating for the Veteran's left knee disorder, prior to December 16, 2008. Thus, adjudication regarding referral for consideration of an extraschedular rating is deferred until completion of the action directed on remand. ORDER A rating in excess of 10 percent for degenerative arthritis of the left knee, limitation of flexion, prior to December 16, 2008, is denied. A rating in excess of 20 percent for residuals status post internal derangement of the left knee, prior to December 16, 2008, is denied. REMAND VA Examination The Veteran was last afforded a VA examination in May 2010 regarding his left knee symptomatology. In a June 2010 statement, the Veteran indicated that he was attaching copies of June 2010 private treatment records reflecting that his left knee had to be drained of fluid. He reported that his range of motion had decreased. His statement therefore implies that the May 2010 VA examination is not an accurate reflection of his current status. These recent statements suggest that there has been an increase in symptomatology of the Veteran's left knee disability since his May 2010 VA examination. As such, the Board finds that the Veteran should be afforded a new VA examination in order to determine the current nature and severity of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Outstanding Private Treatment Records The Veteran most recently, in April 2009, submitted a VA Form 21-4142, Authorization and Consent to Release Information, indicating that there were potentially outstanding records from Kaiser Permanente in Fontana, California dated from October 1996 to the present. In a February 2009 request, to Kaiser Permanente, the VA only requested records dated in December 2008. A review of the file reflects that comprehensive treatment records from Kaiser were last requested in February 2009 by the Veteran, dated between 2005 and February 2009, and submitted to the VA. A prior August 2005 request by the Veteran to Kaiser had requested all records from January 1996 to August 2005. As such, it appears that there are outstanding records from Kaiser Permanente dated from February 2009 to the present. Manlincon- Earlier Effective Date- Limitation of Extension In a February 2008 rating decision, the RO granted a separate 10 percent evaluation for limited extension of the Veteran's left knee. In a March 2008 statement, the Veteran submitted a statement reflecting disagreement with the effective date of the separate 10 percent rating for his left knee limitation of extension. The Board finds that the March 2008 communication is a notice of disagreement as to the February 2008 rating decision assigning a January 31, 2008 effective date for a separate 10 percent evaluation for limitation of extension of the Veteran's left knee. See 38 C.F.R. 20.201. When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The Board finds that the Veteran's claim for entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee, limitation of extension, for the period from January 31, 2008 to December 16, 2008, is inextricably intertwined with his claim of entitlement to an effective date earlier than January 31, 2008 for the grant of degenerative arthritis of the left knee, limitation of extension. Therefore, the issue will be held in abeyance pending completion of the development discussed below. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). As such, the Board defers ruling on this matter until after the mandates of the Remand have been completed. Finally, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating and an effective date. As those questions are involved in the present appeal, proper notice, that includes an explanation as to the type of evidence that is needed to establish a disability rating and an effective date should be sent to the Veteran. Accordingly, the case is REMANDED for the following actions: 1. After the Veteran has signed the appropriate releases, obtain all outstanding records from Kaiser Permanente in Fontana, California. 2. Send the Veteran a corrective VCAA notice that includes an explanation as to the information or evidence needed to establish a disability rating and an effective date for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 3. Following the development set forth in the Remand paragraphs above, schedule the Veteran for an examination to determine the current nature and extent of his left knee disability. The claims folder must be made available to the examiner in conjunction with the examination. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. Any testing deemed necessary should be performed, including X-rays and appropriate range of motion studies. The range of motion of the Veteran's left knee disability should be set forth in degrees. The examiner should further comment as to whether there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should additionally address whether: * the Veteran suffers from ankylosis of the knee; * the Veteran's service-connected left knee disability has resulted in weakness of the left lower extremity; * the Veteran's service-connected left knee disability results in severe painful motion. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 4. Then, readjudicate the issues of entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee, limitation of extension, for the period from January 31, 2008 to December 16, 2008 and entitlement to a rating in excess of 30 percent for status post left knee replacement with history of internal derangement and arthritis, since December 16, 2008. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 5. A statement of the case, containing all applicable laws and regulations, on the issue of an effective date earlier than January 31, 2008 for the grant of a separate 10 percent evaluation for limitation of extension of the left knee must be issued. The Veteran should be advised of the time period in which to perfect his appeal. Only if the Veteran's appeal as to this issue is perfected within the applicable time period, then such should return to the Board for appellate review. The Appellant has the right to submit additional evidence and argument on the matter or 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 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs