Citation Nr: 1321052 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 09-47 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating higher than 10 percent prior to May 22, 2012, and an initial rating higher than 30 percent from July 1, 2013, for degenerative joint disease of the left knee as a residual of injury, status post total left knee arthroplasty. 2. Entitlement to an effective date earlier than July 26, 2007 for the grant of service connection for degenerative joint disease of the left knee as a residual of injury, status post total left knee arthroplasty. 3. Entitlement to an effective date earlier than July 26, 2007 for the grant of service connection for degenerative joint disease of the right knee as a residual of injury, status post total right knee arthroplasty. 4. Entitlement to an effective date earlier than July 26, 2007 for the grant of service connection for instability of the right knee as a residual of injury. REPRESENTATION Veteran represented by: Dax Lonetto, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1970 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal of rating decision in October 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2008 rating decision, the RO granted service connection for instability of the right knee (assigning a 30 percent rating), degenerative joint disease of the right knee (assigning a 10 percent rating), and degenerative joint disease of the left knee (assigning a 10 percent rating), all as residuals of injury, effective July 26, 2007. In his notice of disagreement with the rating decision, which was received in January 2009, the Veteran asserted that a higher initial rating was warranted for the left knee, specifically a separate 30 percent rating for instability; and that an effective date earlier than July 26, 2007 was warranted for the grant of service connection for degenerative joint disease of the left and right knees and for instability of the right knee. The RO issued a statement of the case in September 2009, and the Veteran perfected his appeal to the Board with the filing of a substantive appeal in November 2009. In October 2012, the Veteran appeared at the RO and testified at a Board hearing before the undersigned Veteran Law Judge. A transcript of the hearing is of record. During the pendency of the appeal, the Veteran underwent a total knee arthroplasty on both knees on different dates (right knee in April 2011 and left knee in May 2012). Consequently, he was granted a 100 percent disability rating for each knee for one year following implantation of the prosthesis, and then granted a rating for chronic residuals, as required by 38 C.F.R. § 4.71a, Diagnostic Code 5055. As to the assigned left knee disability ratings, they are follows: 10 percent effective July 26, 2007; 100 percent effective May 22, 2012; and 30 percent effective July 1, 2013. The Veteran has continued his appeal with respect to the ratings assigned for the left knee disability. The appeal is REMANDED to the RO. REMAND In regard to the claim for a higher initial rating for the left knee disability, the Board observes that the Veteran underwent a total knee arthroplasty in May 2012. In statements and in hearing testimony, the Veteran has argued that prior to the total left knee replacement surgery, his knee warranted an initial rating higher than 10 percent. VA outpatient records in the file are dated only through January 2010. At his hearing, the Veteran indicated that the total knee arthroplasty was performed at a private medical facility, on a VA fee-basis contract. The file contains only the operative report dated in May 2012, without any pre-operative evaluations. Given the foregoing, an effort should be made to obtain any existing VA and private medical records of the Veteran's left knee treatment prior to May 2012. Moreover, the Veteran's left knee disability was last evaluated for VA rating purposes during an August 2008 VA examination and has not been evaluated since his total knee replacement surgery, and such is necessary to obtain an accurate assessment of the current knee severity. Given the evidence suggesting a material change in the Veteran's left knee condition and the VA's duty to assist the Veteran in obtaining evidence adequate to decide the claim, an examination is warranted. 38 C.F.R. §§ 3.159(c)(4), 3.327. Before the Board can consider the question of whether an earlier effective date is warranted for service connection for degenerative joint disease of the left and right knees and for instability of the right knee, the RO must first adjudicate the question of whether there was clear and unmistakable error in the October 1972 rating decision, which initially denied service connection for residuals of left and right knee injuries. This is because the issues are inextricably intertwined and a decision on the clear and unmistakable error claim may impact the decision on the claims for earlier effective dates for the grant of service connection. The clear and unmistakable error allegation was first made in the Veteran's substantive appeal statement received in November 2009, after which the RO responded in a letter in March 2010 wherein it declined to review the claim (it stated that the allegation was not a "valid claim" under 38 C.F.R. § 3.105(a)). The Veteran's attorney has since submitted additional argument in a May 2010 letter and at the time of the Board hearing in October 2012. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the claim of whether there was clear and unmistakable error in an October 1972 rating decision by the RO that denied service connection for residuals of left and right knee injuries. If the decision is adverse to the Veteran, he should be advised as to how he can initiate an appeal to the Board. 2. Obtain for association with the claims file, records pertaining to the evaluation and treatment of the Veteran's left knee disability since January 2010 from (a) VA and (b) private medical providers including Carollwood Hospital, after securing the necessary medical release from the Veteran. If the records do not exist or efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Afford the Veteran a VA examination to determine the current level of severity of the service-connected left knee disability. The claims file must be made available to the examiner for review. All necessary tests and studies should be accomplished. All clinical findings in regard to evaluating the Veteran's left knee disability in accordance with applicable rating criteria, should be set forth in the report. The examiner is asked to describe: a). Any chronic residuals of the left knee arthroplasty consisting of severe painful motion or weakness in the knee; and b). Any residual weakness, pain, or limitation of motion in the left knee. To that end, range of flexion and extension in degrees for the left knee, and any additional functional loss (in degrees) due to pain, painful movement, weakened movement, fatigue, or repetitive movement should be noted. Additional limitation of motion during flare-ups and following repetitive use should also be noted. 4. Thereafter, readjudicate the claims currently on appeal. If the benefits sought in connection with the claims remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and an appropriate time period within which to respond. The case should then be returned to the Board for review. The Veteran has the right to submit additional evidence and argument on the 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 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 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).