Citation Nr: 1306175	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  10-43 552	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitled to a rating higher than 20 percent for residuals of a right meniscectomy.  

2.  Entitlement to total disability rating for compensation based on individual unemployability.  


REPRESENTATION

Veteran is by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel






INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran, who is the appellant, served on active duty from September 1958 to April 1959.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).

In his substantive appeal, the Veteran raised the claim for a total disability rating. 

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  


REMAND

On the claim for increase for the right knee, after the Veteran was last examined by VA in June 2009, the Veteran had knee surgery in August 2012.  As there has been a material change in the disability, a VA reexamination is necessary to verify the current severity.  38 C.F.R. § 3.327(a).

Also, in his substantive appeal, the Veteran raised the claim for a total disability rating for compensation, which is not a separate claim, but a part of the claim for increase, requiring additional development.  Rice v. Shinseki, 22 Vet. App. 447 (2009).





Accordingly, the case is REMANDED for the following action:

1.  Ensure compliance with VA's duty to notify and to assist on the claim for a total disability rating for compensation based on individual unemployability.  

2.  Obtain VA records since May 2008.

3.  Ask the Veteran either to submit or to authorize VA to obtain on his behalf private medical records from D. Santos, M.D., Beaumont Health System, and the Rochester Rheumatology Center.  

4.  Afford the Veteran a VA examination to determine the severity of right knee impairment. 

The VA examiner is asked to describe: 

a).  Flexion and extension in degrees and any additional limitation of flexion or extension, considering functional loss due to pain, weakness, fatigability, painful motion, including during flare- ups or with repetitive use, if feasible, in terms of degrees of additional limitation of flexion or extension; 

b).  Any ligament instability; 

c).  Any other symptoms of a meniscectomy, involving the medial and lateral menisci, such as locking or effusion, not encompassed by limitation of flexion or extension or functional loss due to pain or instability. 
d).  The effects the disability has on the Veteran's employment.

The Veteran's file should be provided to the VA examiner for review. 

5.  After the development is completed, adjudicate the claim for increase for the right knee and the claim for a total disability rating for compensation based on individual unemployability, including on an extraschedular basis.  If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and returned the case to the Board. 

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).

The 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).



_________________________________________________
George E. Guido Jr.
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).