Citation Nr: 1316732 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-29 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to rating in excess of 10 percent for status post fracture of the medial femoral condyle with medial collateral ligament damage with slight instability. 2. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease. 3. Entitlement to an effective date prior to July 23, 2009 for assignment of an increased, 10 percent rating for status post fracture of the medial femoral condyle with medial collateral ligament damage with slight instability. 4. Entitlement to an effective date prior to July 23, 2009 for service connection for right knee degenerative joint disease with the assignment of a 10 percent rating. ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from January 1987 to August 1992. This appeal to the Board of Veterans' Appeals (Board) arises from a March 2010 rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans' Affairs (VA). 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 the March 2010 rating decision, the RO granted an increased, 10 percent rating effective July 23, 2009, for the Veteran's service connected status post fractured right medial femoral condyle with medial collateral ligament damage with slight instability, and also granted service connection for right knee degenerative joint disease, assigning a separate 10 percent evaluation effective July 23, 2009. In a subsequent April 2010 notice of disagreement, the Veteran appealed the effective date of the 10 percent rating assigned for the status post fractured femoral condyle and the effective date for service connection for right knee degenerative joint disease with assignment of a 10 percent rating, essentially indicating that he wanted the effective date for assignment of these twin 10 percent rating to be when he separated from service or when he filed his original claim for service connection for right knee disability in 1994. Then, in a later April 2010 notice of disagreement, the Veteran appealed the 10 percent ratings assigned for the right knee disabilities by the March 2010 rating decision. In June 2010, the RO issued a statement of the case, which addressed the appeal of the ratings assigned but did not address the appeal of the effective dates. A subsequent July 2010 report of general information indicates that the Veteran inquired as to why the June 2010 SOC had not addressed the appeal of the effective dates. The Veteran was instructed to mention on his Form 9 that he was appealing the effective dates. On his July 2010 Form 9, the Veteran did indicate that he was appealing the effective dates, along with the ratings assigned. Subsequent to the filing of the Form 9, a June 2010 VA left knee examination report, which included some evaluation of the Veteran's right knee, was associated with the claims file. Also, VA treatment records from December 2010 to February 2013 were added to the Veteran's Virtual VA file. In March 2013, the Veteran's appeals of the ratings assigned were certified to the Board. Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. In the instant case, the RO failed to issue a statement of the case in response to the Veteran's timely filed notice of disagreement concerning the effective dates of the assigned rating for status post fracture of the medial femoral condyle and for service connection for right knee degenerative joint disease with assignment of a 10 percent rating. Consequently, on remand, the RO must issue this statement of the case. If the statement of the case continues to deny the earlier effective dates and the Veteran still seeks to pursue an appeal, he must file a timely Form 9. Also, under 38 C.F.R. § 19.31, a supplemental statement of the case is required when the agency of original jurisdiction receives additional pertinent evidence after a statement of the case has been issued and before the appeal is certified to the Board and the appellate record is transferred to the Board. As mentioned above, subsequent to the June 2010 statement of the case but before certification to the Board of the appeals of the ratings assigned, the RO received additional evidence pertinent to the assigned ratings, including the June 2010 VA left knee examination report (which included some evaluation of the right knee) and VA treatment records from December 2010 to February 2013 (which have been added to the Veteran's Virtual VA file). Consequently, the RO/AMC is required to review this additional evidence and issue a supplemental statement of the case, addressing the appeal of the right knee ratings assigned, before the Board may review these claims on appeal. 38 C.F.R. § 19.31. See also 38 C.F.R. § 19.37(a). On remand, prior to issuing this supplemental statement of the case, the RO/AMC should update the claims file with any available records of VA treatment for right knee disability from July 2008 to December 2010 and from February 2013 to the present. The RO/AMC should also make additional reasonable efforts, subject to receipt of an updated release of information from the Veteran, to attempt to obtain private treatment records from Dr. Rohit M. Desai identified by the Veteran in a November 2009 VA Form 21-4142. Additionally, as the case must be remanded anyway and as nearly three years have passed since the last VA medical examination evaluating the severity of the service-connected right knee disabilities, on remand, the Veteran should be afforded a current VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should update the claims file with any available records of VA treatment for right knee disability from July 2008 to December 2010 and from February 2013 to the present. The RO/AMC should also make additional reasonable efforts, subject to receipt of an updated release of information form, to attempt to obtain private treatment records from Dr. Rohit M. Desai identified by the Veteran in a November 2009 VA Form 21-4142. Additionally, the RO/AMC should ask the Veteran to identify any additional sources of treatment or evaluation he has received for right knee disability since July 2008 and should secure copies of complete records of the treatment or evaluation from all sources appropriately identified. 2. The RO/AMC should arrange for a VA examination by an appropriate medical professional to determine the current severity of the Veteran's service connected right knee disabilities. The Veteran's claims file should be reviewed by the examiner in conjunction with the examination. Any indicated tests (including range of motion studies) should be performed. The examiner should assess whether the Veteran has any additional loss of right knee motion after repetitive use and/or flare-ups and should also assess the level of any right knee instability. 3. The RO/AMC should issue a statement of the case to the Veteran addressing the matters of entitlement to an effective date prior to July 23, 2009 for assignment of an increased, 10 percent rating for status post fracture of the medial femoral condyle with medial collateral ligament damage with slight instability and entitlement to an effective date prior to July 23, 2009 for service connection for right knee degenerative joint disease with the assignment of a 10 percent rating. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order. 4. The RO/AMC should readjudicate the claims for increase for right knee status post fracture of the medial femoral condyle with medial collateral ligament damage with slight instability and right knee degenerative joint disease. If either remains denied, the RO/AMC should issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is 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). _________________________________________________ KELLI KORDICH Acting 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).