Citation Nr: 1324948 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 06-28 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for schizoaffective disorder. 3. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right knee. 4. Entitlement to an initial evaluation in excess of 10 percent for patellar subluxation and instability of the right knee. 5. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the left knee. 6. Entitlement to an initial evaluation in excess of 10 percent for instability of the left knee. 7. Entitlement to a compensable initial evaluation for idiopathic gastroparesis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from October 1971 to March 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By rating action dated August 2007, the RO granted service connection for degenerative joint disease of each knee, and assigned a 10 percent rating for each knee. A February 2008 rating decision assigned separate 10 percent evaluations for instability of the left knee and for patellar subluxation and instability of the right knee. In December 2010, the Board remanded the claims for an increased rating for bilateral knee disabilities. In an April 2012 decision, the Board denied the claims for higher evaluations for the Veteran's service-connected bilateral knee disabilities. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated February 2013, granted a Joint Motion for Partial Remand (Joint Motion). 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. REMAND The Joint Motion noted the Board failed to explain whether a torn meniscus of the knee is equivalent to a dislocated semilunar cartilage under Diagnostic Code 5258. It was observed the record shows the Veteran has defects of the meniscus of each knee, and he has complaints of locking and effusion. Such complaints were not accounted for by the separate ratings under Diagnostic Codes 5010, 5257 and 5260. The most recent comprehensive VA examination of the knees was in December 2007. The Court has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. at 632. The Joint Motion also indicated the examiner failed to provide an opinion as to whether pain would limit the Veteran's functional ability during flare-ups or on repeated use. See Deluca v. Brown, 8 Vet. App. 202 (1995). In its April 2012 decision, the Board stated that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU) had not been raised by the record. The Joint Motion pointed out the Veteran has consistently attributed his lengthy unemployment, at least in part, to his physical disabilities, includes his knees. Thus, it was held that a claim for TDIU was reasonably raised by the record, and the VA should address that matter. By rating action dated January 2012, the RO denied service connection for PTSD and concluded new and material evidence had not been received to reopen a claim for service connection for schizoaffective disorder. In addition, the RO granted service connection for idiopathic gastroparesis and assigned a noncompensable evaluation for it. The Veteran submitted a notice of disagreement with the denials of service connection, and the evaluation assigned for idiopathic gastroparesis. However, a statement of the case has not been issued on these matters. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). These matters must, accordingly, be remanded for issuance of a statement of the case. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify all providers of evaluation and/or treatment he received for his bilateral knee disabilities since 2012, and to provide authorizations for VA to secure records from any private providers identified. The RO should secure for the record copies of the complete clinical records from all providers identified. 2. After the development sought above is completed, the RO should arrange for an orthopedic examination of the Veteran to determine the current nature and severity of his service connected bilateral knee disabilities. The Veteran's VA medical record must be reviewed by the examiner in conjunction with the examination. All indicated studies must be completed, and should specifically include range of motion studies, active and passive, of each knee. The examiner must note any additional functional limitations due to such factors as pain, use, etc., including during flare-ups and with repeated use over time. The examiner is specifically asked to discuss whether a torn knee meniscus equates to a dislocated semilunar cartilage in either knee. The examiner should also comment on the impact of the service-connected knee disabilities on the Veteran's ability to engage in substantially gainful employment. 3. The RO should issue a statement of the case addressing the issues of whether new and material evidence has been received to reopen a claim for service connection for schizoaffective disorder, service connection for PTSD, and entitlement to a compensable initial evaluation for idiopathic gastroparesis. The appellant and his representative should be afforded the appropriate period of time to respond. These issues should be returned to the Board only if the Veteran or his representative submits a timely substantive appeal. 4. The RO should then review the record and readjudicate the knee claims now on appeal. If any of the claims 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 supplemental statement of the case should consider whether a higher rating, or a separate rating, is warranted for each knee under Diagnostic Codes 5258 and 5259, as well as whether a TDIU is warranted. The case should then be returned to the Board, if in order, for further appellate consideration. 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). 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). _________________________________________________ ALAN S. PEEVY 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).