Citation Nr: 1324306	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  10-18 370A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to a rating higher than 20 percent for a low back disability.

2.  Entitlement to a rating higher than 10 percent for a right knee disability.

3.  Entitlement to a total disability rating for compensation based on individual unemployability.



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel



INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran had active service from February 1958 to June 1962.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in record.  

The claims for increase are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


REMAND

In August 2011, the Veteran testified that his back and right knee symptoms were worse than when he was lasted examined by VA in 2009.  As there appears to be a material change in the disabilities, reexamination under 38 C.F.R. § 3.327 is warranted. 

Also, the record raises the claim for a total disability rating for compensation based on individual unemployability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim for a total disability rating for compensation based on individual unemployability is part of an increased rating claim when such a claim is raised by the record). 




Accordingly, the case is REMANDED for the following action:

1.  Obtain VA records since February 2008. 

2.  Afford the Veteran a VA examination to determine the current severity of the service-connected low back disability and right knee disability.  

For the low back disability, the VA examiner is asked to describe: 

a).   Range of motion of the lumbar spine in degrees of forward flexion and any additional functional loss due to pain, painful movement, weakened movement, fatigue, or repetitive movement; 

b).  Any objective neurological abnormalities of the lumbar spine; and,  

c).   Any incapacitating episodes necessitating bed rest and treatment by a physician, and if so, the duration of the episodes. 

For the right knee disability, the VA examiner is asked to describe:  

d).  Range of flexion and extension in degrees and whether there is any other functional loss due to pain, weakened movement, excess fatigability, and incoordination, or with repetitive use or flare-ups.  




If feasible, any additional functional loss should be expressed terms of loss of flexion or extension. 

e).  The degree of recurrent subluxation or lateral instability.  

f).  Whether there is evidence of a meniscal dislocation with frequent episodes of locking, pain, and effusion, not encompassed in limitation of motion or instability or both. 

3.  Adjudicate the claims for increase for the low back and right knee disability, and the claim for a total disability rating for compensation based on individual unemployability, ensuring VCAA compliance, and applying either 38 C.F.R. § 4.16(a) or (b).  If any benefit sought is denied, furnish the Veteran a supplemental statement of the case and return the case to the Board.

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).











The claims 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 E. Guido Jr.
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).