Citation Nr: 1314978 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-21 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for anterior cruciate ligament instability of the left knee. 2. Entitlement to a disability rating in excess of 10 percent for a left knee disability with arthritis. 3. Entitlement to a disability rating in excess of 30 percent for right total knee replacement with medial and lateral instability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, his spouse and his son ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from December 1950 to December 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. A supplemental statement of the case (SSOC) was issued in June 2012, which addressed this additional evidence. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in March 2013. A transcript of that hearing has been associated with the claims file. 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 Although the Board regrets any further delay in adjudicating the Veteran's claim, pursuant to the duty to assist, the issues of entitlement to an initial disability rating in excess of 10 percent for anterior cruciate ligament instability of the left knee, a disability rating in excess of 10 percent for a left knee disability with arthritis, and a disability rating in excess of 30 percent for right total knee replacement with medial and lateral instability must be remanded for further development. As the Veteran was last provided a VA examination for his right and left knees in April 2012, approximately one year ago, and the testimony provided by the Veteran, his spouse and his son in the March 2013 Travel Board hearing indicate a possible worsening of symptoms, the Board finds that a current VA examination is necessary to adequately evaluate the claims on appeal. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPCGPREC 11-95; see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should schedule the Veteran for a VA examination by an appropriate specialist, to determine the current nature and etiology of his right and left knee disabilities. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The evaluation of the Veteran's right and left knees should consist of all necessary testing, including any necessary radiology reports, to adequately assess the severity of the current disability. The examiner is asked to comment on the degree of severity of the Veteran's right and left knee disabilities and their affect on his employment and activities of daily living. The examiner is also specifically asked to answer the following: (a). Is the Veteran's right total knee replacement with medial and lateral instability productive of chronic residuals consisting of severe painful motion or weakness in the affected extremity? (b). Is the Veteran's left knee disability productive of moderate or severe recurrent subluxation or lateral instability? If so, please specify whether such is moderate or severe. A complete explanation should be provided for any opinion expressed, and the foundation for all conclusions should be set forth. The report of the examination should be associated with the claims file. 2. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all instructions. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 3. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claims based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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 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). _________________________________________________ JOHN Z. JONES 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).