Citation Nr: 1312014	
Decision Date: 04/11/13    Archive Date: 04/19/13

DOCKET NO.  10-33 990	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to a higher initial rating in excess of 10 percent for right knee instability.  

2.  Entitlement to an increased rating psoriatic arthritis of the right knee and ankle (previously rated as right knee strain with degenerative joint disease), evaluated as 10 percent disabling prior to July 21, 2011, and as 40 percent disabling beginning on that date.  


REPRESENTATION

Appellant represented by:	John S. Berry, Esquire


ATTORNEY FOR THE BOARD

A. Bordewyk, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1973 to September 1975.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection for right knee instability, with an initial 10 percent rating assigned, effective April 2, 2010, and denied entitlement to an increased rating in excess of 10 percent for a right knee disability associated with psoriatic arthritis.  

In a September 2011 rating decision, an increased rating of 40 percent was assigned, effective July 21, 2011.  A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35 (1993).  Therefore, the claim for a higher rating for a right knee disability remains before the Board.  

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


REMAND

In August 2012, new VA treatment records were obtained and added to the Virtual VA claims file.  These records were not considered by the RO in a supplemental statement of the case (SSOC).  In February 2013, the Board asked the Veteran whether she wanted to waive consideration of these records by an agency of original jurisdiction (AOJ) and informed her that if she did not respond to the letter in 45 days, the board would assume that she wanted the records to be viewed by the AOJ in the first instance.  She did not respond to the February 2013 letter.  Therefore, the case therefore must be remanded to the AOJ for initial review and consideration of the new evidence of record.  Disabled American Veteran v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); 38 C.F.R. 
§§ 19.37(b), 20.1304(a) (2012).

Accordingly, the case is REMANDED for the following action:

The AOJ must readjudicate the issue on appeal with consideration of the additional evidence received since the most recent SSOC.  If the benefit sought is not fully granted, a SSOC should be issued.  Thereafter, the case should be returned to the Board, as appropriate. 

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 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 2002 & Supp. 2012).



_________________________________________________
THOMAS J. DANNAHER
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).