Citation Nr: 1306483	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  05-28 671A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida



THE ISSUE

Entitlement to a rating in excess of 20 percent for residuals of a left knee injury.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

K. Curameng, Counsel




INTRODUCTION

The appellant is a Veteran who served on active duty from February 1981 to May 1985.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO) that granted an increased (from 10 to 20 percent) rating for the Veteran's left knee disability, effective May 5, 2004.  [A December 2006 rating decision assigned a temporary total (100%) convalescent rating effective from September 7, 2006 through October 2006.  Accordingly, that period of time is not for consideration.  ]  This matter was before the Board in February 2009, May 2011 and June 2012 when it was remanded for additional development.  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action on his part is required.


REMAND

In the June 2012 remand it was noted that there were outstanding treatment records, (including the report of an October 2011 VA knee examination); the Board ordered development for such records (and any further development suggested).  The Veteran had last been examined by VA for the left knee in July 2009, and it was believed that the outstanding records would provide a contemporaneous picture of the left knee disability.   

The RO secured the outstanding treatment records, and they suggest that the left knee disability had increased in severity since the July 2009 examination.   Consequently, a contemporaneous VA examination became necessary.  (The October 2011 knee examination was conducted primarily to evaluate the Veteran's right knee, and the findings pertaining to the left knee reported are inadequate to rate the left knee disability).  However, a contemporaneous examination was not ordered.  In January 2013 argument the Veteran's representative asserted that October 2011 examination is inadequate to evaluate the left knee and requested a remand for an adequate examination.   The Board agrees with the representative's assessment of this matter./

Accordingly, the case is REMANDED for the following:

1.  The RO should arrange for an orthopedic examination of the Veteran to determine the current severity of his residuals of left knee injury.  The Veteran's claims file should be reviewed in conjunction with the examination.  All findings should be reported in detail, and any indicated tests or studies should be completed (to specifically include active and passive ranges of motion, with any further limitation of motion due to pain reported).  The examiner should note whether there is instability and subluxation (and if so describe their severity).  The examiner should also note whether the disability results in weakened movement, excess fatigability, or incoordination.  

The examiner should explain the rationale for all opinions. 

2.  The RO should then review the record and readjudicate the claim.  If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner.


_________________________________________________
George R. Senyk
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).