Citation Nr: 1323325 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 07-05 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to November 1999, and had 2 years and 8 months of prior unverified service. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which assigned an initial 10 percent rating for degenerative joint disease of the right knee, effective January 15, 2003. In a December 2005 rating decision, a separate 10 percent rating was assigned for the right knee instability. In September 2011, the Board denied the Veteran's claims for an increase rating for right knee degenerative joint disease and right knee instability. He appealed the portion of the decision regarding the issue of right knee degenerative joint disease to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In September 2012, the Court granted a Joint Motion for Partial Remand (JMR) and remanded the matter of an increased rating for right knee degenerative joint disease to the Board for action consistent with the September 2012 Court order. In March 2013, the Board remanded the claim for additional development. 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 on his part. REMAND By the terms of the previous remand, the Veteran was scheduled for a VA examination, in April 2013, in order to assess the severity of his right knee degenerative joint disease consistent with the terms of the JMR. The JMR stated that the Board did not address the principles as discussed in Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) and Deluca v. Brown, 8 Vet.App. 202, 205-06 (1995). According to the AMC, the Veteran canceled the appointment. However, in May 2013, the Veteran replied to the May 2013 supplemental statement of the case continuing the denial of his claim and stated that he never received notification of the scheduled examination and requested that a new VA examination be scheduled. Because the regular practices of VA do not include making a hard copy of the veteran's notice of his/her scheduled VA examination, the absence of such copy from the claims file cannot be used as evidence to demonstrate that notice was not mailed. Kyhn v. Shinseki, 23 Vet. App. 335, 339 (2010). However, in the absence of any indication that the Veteran affirmatively cancelled his examination as the AMC asserts, the Board finds that a new VA examination should be scheduled in order to fairly assess the Veteran's claim. The Veteran is advised that failure without good cause to report for examination may result in denial of his claim. See 38 C.F.R. § 3.655(b) (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, frequency and severity of any impairment related to the Veteran's right knee disability. The claims folder should be made available to and reviewed by the examiner. The examiner must provide the range of flexion and extension of the right knee in degrees and indicate whether there is objective evidence of pain on motion. The examiner must also indicate whether the right knee exhibits weakened movement, excess fatigability, or incoordination during flare ups or upon repetitive use. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost, i.e., the extent of his pain-free motion. The examiner must also indicate whether there is evidence of recurrent subluxation or lateral instability of the right knee. All right knee pathology should be noted and the examiner should describe the extent and severity of the Veteran's right knee disability in terms conforming to the rating criteria. The examiner should also indicate the impact the Veteran's right knee disability has on his ability to secure or follow a substantially gainful occupation. 2. Then, readjudicate the appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto before the file is returned to the Board. By this remand the Board intimates no opinion regarding any final outcome warranted. 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). (CONTINUED ON NEXT PAGE) 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 H. NILON 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).