Citation Nr: 1324247	
Decision Date: 07/30/13    Archive Date: 08/07/13

DOCKET NO.  10-09 857	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to a rating in excess of 10 percent for a right knee disability.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Appellant and spouse.


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from October 1967 to August 1975.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO).  This matter was previously before the Board in August 2012, when it was remanded to schedule a Travel Board hearing.  Such hearing was held before the undersigned in March 2013; a transcript is associated with the claims file.  During the hearing, the Veteran was advised of the evidentiary requirements for his claim.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).

The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action on his part is required.


REMAND

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case.  While the notice provisions of the VCAA appear to be satisfied, further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim.  See 38 C.F.R. § 3.159 (2012).

The Veteran was last afforded a VA examination for his right knee in May 2007.  He asserts that his right knee disability has worsened in the interim.  Specifically, he testified that he has limitation of range of motion (i.e., he can't fully straighten his right knee) and that he has arthritis diagnosed.  Given the length of the intervening period since his last VA examination, and that he is competent to observe increased knee symptomatology such as an increase in limitation in range of motion, a contemporaneous examination to ascertain the current severity of his right knee disability is necessary.

Notably, staged ratings may be appropriate in a claim for increase when the factual findings show distinct time periods when the disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Accordingly, the case is REMANDED for the following:

1.  The RO should secure for the record copies of any (and all) records of treatment the Veteran received for right knee disability since the record was last updated..

2.  The RO should then arrange for an orthopedic examination of the Veteran to determine the current severity of his right knee disability.  The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination.  All findings should be described in detail.  The examiner should specifically note range of motion findings, with notation of any further limitations due to pain, weakness, incoordination, on use, and/or other such factors; whether there is instability (and if so, the extent); and whether or not there is X-ray evidence of arthritis in the right knee.  

The examiner should explain the rationale for any opinions.
 
3.  The RO should then review the record and readjudicate the claim.  If it remains denied, the RO should issue an appropriate supplemental statement of the case 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 appellate review.

The appellant 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).