Citation Nr: 1313745 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 01-01 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to increased evaluations for a left knee disability, evaluated as 10 percent disabling prior to October 12, 2002, 20 percent disabling from October 12, 2002, through July 2007, and 30 percent disabling from August 1, 2007, to include entitlement to a temporary total rating for convalescence required following surgery performed in August 2012. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Jurisdiction over this case was transferred to the RO in Los Angeles, California in June 2007. The Veteran testified at a hearing at the RO before the Board in August 2005; a transcript of the hearing is associated with the claims files. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. This case was before the Board in August 2012 when it was remanded for additional development. It has since been returned to the Board for further appellate action. In an October 2012 statement, the Veteran's representative raised the issues of entitlement to initial disability ratings in excess of 10 percent for the service-connected bilateral foot disability, and in excess of 10 percent for the service-connected right knee disability. These issues have not been adjudicated by the originating agency. Accordingly, the Board refers the issues to the originating agency for appropriate action. REMAND In the August 2012 remand, the Board, in pertinent part, noted that the report of VA examination of the knees in June 2012 included findings pertinent to the service-connected left knee issue on appeal. As the Veteran had not waived consideration of such evidence in the first instance by the originating agency, the Board determined that a remand was necessary so that the originating agency could consider the evidence and prepare a supplemental statement of the case, if warranted. See 38 C.F.R. §§ 19.31(b) (2012), 19.37(a), 20.1304(c). Although a supplemental statement of the case was issued in January 2013, there is no indication that the originating agency reviewed the June 2012 VA examination report, as it was not listed in the evidence section, nor discussed in the reasons and bases section. Therefore, a remand is necessary so that the originating agency can consider the examination report and prepare a supplemental statement of the case, if warranted. Subsequent to the aforementioned VA examination, the Veteran underwent surgery in August 2012 for his service-connected left knee, in order to repair a torn medial meniscus. As the Veteran's left knee surgery occurred after the June 2012 VA examination and it appears from the records pertaining to the surgery that the disability increased in severity after the June 2012 VA examination, the Veteran should be afforded another VA examination to determine the current degree of severity of his service-connected left knee disability. In addition, the Veteran's representative has claimed in argument submitted in February 2012 that a temporary 100 percent rating should be assigned for convalescence required following the August 2012 surgery. Therefore, appropriate development to obtain records pertaining to the Veteran's treatment following the surgery should be completed and the VA examiner should provide an opinion addressing the extent, if any, to which convalescence was required following the August 2012 surgery. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following action: 1. The RO or AMC should provide the Veteran with notice of the evidence needed to substantiate a claim for a temporary total rating based on the need for convalescence, the evidence and information that he should submit, and the assistance that VA will provide to obtain evidence on his behalf. 2. The RO or AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include records pertaining to the Veteran's follow up care after the June 2012 surgery. 3. Then, the RO or AMC should arrange for the Veteran to be afforded an appropriate VA examination in order to determine the current nature and severity of the service-connected left knee disability and when his need for convalescence, if any, ended following the August 2012 surgery. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner in conjunction with the examination. The RO or AMC should ensure that the examiner provides all information required for rating purposes and for determining the extent, if any, to which the Veteran is entitled to a temporary total rating for convalescence following the August 2012 surgery. The supporting rationale for all opinions expressed must be provided. 4. The RO or AMC should ensure that the Veteran is provided with adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for the examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 5. The RO or AMC should also undertake any other development it determines to be warranted. 6. Then, the claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or AMC should issue to the Veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity for response before the claims files are returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin 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).