Citation Nr: 1323195 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 06-26 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a combined rating in excess of 20 percent for a left knee disability prior to July 10, 2012, and in excess of 30 percent from September 1, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1985 to March 1988 and from July 1993 to June 2002. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from a May 2006 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, continued a combined 10 percent rating for the Veteran's left knee disability. A May 2007 rating decision increased the combined rating for the Veteran's left knee disability to 20 percent, effective February 17, 2006 (the date of claim). The Board upheld the RO's May 2007 decision in a March 2011 decision. The Veteran appealed that decision to the Court. In October 2011, the Court issued an order that vacated the March 2011 Board decision and remanded the matter on appeal for readjudication consistent with the instructions outlined in a September 2011 Joint Motion for Remand (Joint Motion) by the parties. In December 2011 and December 2012, the Board remanded the case for additional development and to satisfy notice requirements. An April 2013 rating decision increased the combined rating for the Veteran's left knee disability to 30 percent, effective August 21, 2012 (the date of a VA examination). Thereafter, a June 2013 rating decision increased the combined rating for the Veteran's left knee disability to 100 percent (a temporary total convalescent rating under 38 C.F.R. § 4.30), effective July 10, 2012 (the date of a left knee surgery), followed by a 30 percent combined rating, effective September 1, 2012. In August 2012 the Veteran submitted a new VA Form 21-22, appointing a new representative in this case (identified on the preceding page). The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. Additional documents pertinent to this appeal in Virtual VA have been printed and associated with the physical claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. REMAND The Veteran seeks an increase in the rating for his service-connected left knee disability, rated as 20 percent combined prior to July 10, 2012 (based on a formulation of 10 percent for status post anterior cruciate ligament (ACL) reconstruction of the left knee under Diagnostic Code (Code) 5257, and 10 percent for left knee injury with traumatic arthritis under Codes 5010-5260); and as 30 percent combined from September 1, 2012 (based on a formulation of 10 percent for status post ACL reconstruction of the left knee under Code 5257, and 20 percent for left knee injury with traumatic arthritis under Codes 5010-5260). [His left knee disability is now rated as 100 percent disabling from July 10, 2012 through August 31, 2012, pursuant to 38 C.F.R. § 4.30; this award of a temporary total convalescent rating renders moot the question of entitlement to an increased rating for such period of time.] In its December 2012 remand, the Board instructed the RO to ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) treatment or evaluation he has received for his left knee disability, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation. The RO was instructed to obtain complete records of all such treatment and evaluation from all sources identified, to specifically include all records pertaining to the Veteran's July 2012 left knee surgery (including those noting any symptoms prior to the surgery, the surgical procedure itself, and any post-surgery convalescence, rehabilitation, and physical therapy). In its June 2013 rating decision (which was found in Virtual VA and has now been printed and associated with the physical claims file), the RO noted that it had considered evidence received in August 2012 from a private facility (Baylor Surgicare at Plano Parkway). However, at this time such records are not in Virtual VA, or in the physical claims file. Such records are critical evidence that must be considered in the adjudication of the claim; records leading up to the July 2012 surgery may identify a period of time during which a "staged" increased rating is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007) ("staged" ratings are appropriate in an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings). Accordingly, the case is REMANDED for the following: 1. The RO must associate with the claims file all records received from Baylor Surgicare at Plano Parkway which pertain to the Veteran's July 2012 left knee surgery (including those documenting any symptoms prior to the surgery, the surgical procedure itself, and any post-surgery convalescence, rehabilitation, and physical therapy). If any records requested are unavailable, the reason must be explained for the record. 2. The RO should ensure that the development sought is completed, arrange for any further development suggested by the additional evidence received, and then readjudicate the claim. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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 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). _________________________________________________ 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).