Citation Nr: 1310841 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 08-34 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased rating for residuals of medial meniscectomy, right knee, with degenerative changes, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1979 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal was most recently before the Board in June 2011. The Veteran appealed the Board's June 2011 denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated April 11, 2012, the Court vacated the Board's June 2011 denial and remanded this matter to the Board for compliance with the instructions included in the April 2012 Joint Motion for Remand (Joint Motion) by the parties. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The April 2012 Joint Motion states that the Board erred in relying on the August 2010 VA examination report in determining that the Veteran was not entitled to an evaluation under Diagnostic Code 5257. The Joint Motion calls attention to the fact that the VA examiner neither reviewed the claims file nor considered the March 2008 MRI report which showed mild lateral sublaxation. The Court held that although the diagnostic criteria under Diagnostic Code 5257 requires recurrent subluxation, in light of the fact that the August 2010 VA examiner did not review the March 2008 MRI, it was error for the Board to rely on this examination report when determining there was no evidence of recurrent sublaxation or lateral instability. Accordingly, the Court vacated the Board's June 2011decision and remanded it for additional consideration. Specifically, the Joint Motion requested the Board review all relevant evidence, specifically the March 2008 MRI report, to determine whether an increased rating is warranted under Diagnostic Code 5257. In light of the concerns of the Court, the Veteran should be afforded a new VA examination to determine the current severity of his service-connected right knee disability, and to ensure compliance with the terms of the Joint Motion. 38 C.F.R. § 3.327 (a). The examiner is specifically requested, following a review of the Veteran's claims file and considering the March 2008 MRI report, to report whether there is recurrent subluxation or instability of the right knee and, if so, whether it is slight, moderate, or severe. Furthermore, the Board notes that VA has an obligation to assist claimants in obtaining evidence, to include relevant records from VA medical care providers. 38 C.F.R. § 3.159. As such, the RO should take this opportunity to obtain any recent VA records relevant to the Veteran's claim that have not yet been associated with the claims file, to include any relevant VA treatment records dating back to April 2011. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any VA treatment records (not already of record) relevant to the appeal from April 2011 to present. 2. The Veteran should be scheduled for a VA knee examination to ascertain the current severity of his service-connected right knee disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. The examiner should clearly report range of motion of the right knee. The examiner should also clearly report at what point (in degrees), if any, that the range of motion is limited by pain. Any additional functional loss due to weakness, fatigue, and/or incoordination should be reported (in degrees if possible), including during flare-ups. The examiner should also report whether there is recurrent subluxation or instability of the right knee and, if so, whether it is slight, moderate, or severe. The examiner is requested to review and specifically comment on the 2008 MRI report and the diagnosis of mild subluxation of the right knee. 3. In the interest of avoiding a future remand, the RO/AMC should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination reports. 4. Following completion of the above, and any other necessary development, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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 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). _________________________________________________ ALAN S. PEEVY 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).