Citation Nr: 1308716 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 01-05 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a disability rating in excess of 10 percent prior to January 20, 2011, and in excess of 30 percent as of March 1, 2012, for a right knee disability, status post total knee replacement. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to March 1978 and from October 1979 to December 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that continued 10 percent disability ratings for right and left knee disabilities. In March 2002, the Veteran testified before the Board at a hearing held at the RO. In November 2003 and March 2009, the Board remanded the appeal for further development. In an October 2010 decision, the Board granted an increased rating for left knee instability and denied an increased rating for left knee limitation of extension, and remanded the right knee claim again for additional development. In March 2012, the Board remanded the appeal for compliance with the October 2010 remand. In an October 2012 rating decision, the RO assigned a temporary 100 percent rating for the right knee disability based on a total knee replacement that necessitated convalescence, effective from January 20, 2011, to February 29, 2012, and assigned a 30 percent rating effective from March 1, 2012. In April 2009, the Veteran raised a claim of entitlement to an increased rating for his bilateral ankle disability. As that claim has not been developed for appellate review, the Board refers it to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Unfortunately, additional development is required prior to the disposition of the Veteran's claim for an increased rating for his right knee disability. The Veteran was last afforded an examination for his right knee disability in August 2011. However, that examination was conducted during a period of convalescence following total knee replacement surgery. His now postoperative disability has been assigned a 30 percent rating effective March 1, 2012. A 30 percent rating is the minimum rating assigned following a total knee replacement. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). Under Diagnostic Code 5055, he is eligible for a 60 percent rating if his disability is manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity (with intermediate degrees of residual weakness, pain, or limitation of motion rated by analogy to the appropriate diagnostic codes). However, in order to properly assess the Veteran's claim, he should be afforded a VA examination. The Board finds that the evidence of record does not adequately describe the current severity of the Veteran's disability. Prior to the examination, any outstanding VA medical records should be obtained. The Veteran receives treatment from the San Antonio VA Medical Center (VAMC), and, aside from two physical therapy notes dated in August and September 2012, the record, including his Virtual VA file, contains treatment notes dated through August 2011. As the second period of time on appeal begins on March 1, 2012, any treatment notes since that time should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding records of treatment from the San Antonia VAMC since August 2011. 2. Thereafter, schedule the Veteran for a VA examination to determine the severity of his right knee disability, status post total knee replacement. The examiner must review the claims file and must note that review in the report. All indicated tests should be conducted. The examiner should set forth all objective findings, particularly the current severity of symptoms. The examiner should also provide an opinion on the impact of the right knee disability on the Veteran's ability to work. The examiner should state whether or not severe painful motion or weakness is shown in the right knee. A complete rationale should be given for all opinions and conclusions. 3. Then, readjudicate the claim. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Thereafter, return the case to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).