Citation Nr: 1321963 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-00 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increase in the ratings for partial tear of the left medial meniscus (currently assigned staged ratings of 40 percent from July 9, 2004, and 10 percent from November 1, 2007), to include the propriety in the reduction effective November 1, 2007. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1999 to July 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO) which reduced the rating for partial tear of the left medial meniscus from 40 percent to 0 percent, effective November 1, 2007. An interim (December 2009) rating decision restored part of the reduction (to 10 percent), also effective November 1, 2007. The Veteran's claims file is now in the jurisdiction of the Pittsburgh, PA RO. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND A March 2005 rating decision granted the Veteran service connection for a partial tear of the left medial meniscus, rated 40 percent (based on a February 2005 VA examination), effective from July 2004. Following an April 2007 VA examination a May 2007 rating decision proposed, and the July 2007 rating decision on appeal implemented, a reduction in the rating to 0 percent, effective November 1, 2007. The Veteran's notice of disagreement received in September 2007 challenged the reduction. The Board notes that this case has been processed for appellate review (see October 2008 statement of the case (SOC)) not as one involving the propriety of a reduction, but rather as a claim for an increased rating for the disability at issue. The distinction is significant as a case involving the propriety of a reduction requires consideration of regulatory criteria affording certain due process protections specific to such matter that do not apply in a general claim for increase. See 38 C.F.R. § 3.105(e). [Notably, the provisions of 38 C.F.R. § 3.344(a)(b) do not apply as the rating reduced was not in effect for 5 years/the disability had not stabilized.] Additionally, the Veteran was last afforded a VA examination in September 2009. VA treatment records show he continues to complain of knee pain and alleges that the disability is improperly rated (suggesting increase in the interim). In light of the length of the intervening period since the September 2009 examination and the allegation of continued pain, a contemporaneous examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Moreover, the Board finds the September 2009 examination report to be inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the reports of the range of motion studies are not clear and appear inconsistent, as the examiner reported that the Veteran had 0 degrees of extension and 100 degrees of flexion but then also reported the Veteran had -80 degrees of flexion. Clarification is needed. Furthermore, the record reflects that the Veteran receives VA treatment for his left knee disability. The most recent records of such treatment in the claims file are dated in June 2011. Updated records of VA treatment for the disabilities at issue are likely to contain pertinent information, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for association with the claims file updated records of all VA treatment the Veteran has received for his left knee disability from June 2011 to the present. 2. The RO should then arrange for an orthopedic examination of the Veteran to ascertain the severity of his service-connected left knee disability. His claims folder must be reviewed by the examiner (who should also have available for review the criteria for rating knee disabilities) in conjunction with the examination. Any indicated tests or studies (specifically including range of motion studies and tests for instability) should be performed. The examiner should note whether there are further functional limitations due to pain, weakness, fatigue and/or incoordination. The findings should include sufficient detail for consideration of all applicable criteria. 3. The RO should then review the record and readjudicate the matter on appeal (to encompass both the propriety of the reduction and entitlement to increase in the post-reduction rating). If the benefit sought remains denied, the RO should issue an appropriate supplemental SOC, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran 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 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). _________________________________________________ GEORGE R. SENYK 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).