Citation Nr: 1325950 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-29 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased initial rating for residuals of right knee injury, to include a rating in excess of 10 percent for torn anterior cruciate ligament (ACL) and a compensable rating for torn medial meniscus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from September 1999 to September 2003. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO granted service connection for right knee anterior cruciate ligament (ACL), residual of right knee injury, and right knee torn medial meniscus, residual of right knee injury. The right knee ACL disability was assigned an initial 10 percent evaluation and the right knee meniscus disability was assigned a non-compensable evaluation. 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 For the reasons discussed below, the Board finds that further development is necessary for a fair adjudication of the Veteran's claim. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2012). The Veteran underwent a VA examination in January 2011. Since that examination, the Veteran has stated that the right knee disability is worsening. He has requested a new examination. In February 2012, the Veteran submitted a November 2011 private treatment record regarding his right knee. The records, while not sufficient for rating purposes, appear to confirm a more severe disability picture. For instance, the records reflect the Veteran has a loss of extension and flexion, marked patellofemoral irritability on range of motion testing and slight crepitus during active extension. He had a positive Lachman's test, shift test, and anterior drawer test. He also had a positive McMurray's test for pain and snapping in the posteromedial corner, positive Apley's grind test, and a positive apprehension test. Magnetic resonance imaging showed a complete chronic proximal ACL tear associated with anterior tibial translation and posterior cruciate ligament buckling, among other findings. The doctor concluded the Veteran would need ACL reconstruction and meniscectomies at some point. Given such, the Board finds that a new VA examination is necessary. Regarding this November 2011 record, the Veteran did not indicate whether he waived initial RO review of such evidence. By law an appellant has the right to "one-review" on appeal; in essence, he can have the evidence considered by the RO prior to consideration of such by the Board. See generally, 38 C.F.R. § 20.1304; Disabled American Veterans v. Principi, 327 F.3d 1339 (Fed. Cir. 2003). In view of the above, and to avoid any prejudice to the Veteran (see Bernard v. Brown, 4 Vet. App. 384 (1995)), the matter on appeal must be returned to the RO, via the AMC, for consideration of the claim in light of all additional evidence added to the record Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for the Veteran to undergo VA examination by an appropriate physician to evaluate the current severity of the Veteran's right knee disability, to include a torn ACL and torn medial meniscus. The claims file must be made available to and reviewed by the examiner. 2. Thereafter, the RO should review the case on the basis of the additional evidence added to the record since the October 2011 statement of the case. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ MATTHEW D. TENNER 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).