Citation Nr: 1326349 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 06-24 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an initial compensable rating for left knee patellofemoral syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to October 2004. This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) on appeal from a rating decision of the VA Regional Office (RO) in Baltimore, Maryland that, among other things, granted service connection for left knee patellofemoral syndrome, rated zero percent disabling, effective from November 1, 2004. The Veteran was afforded a hearing in September 2009 in Washington, DC before the undersigned Veterans Law Judge sitting at Washington, DC. The transcript is of record. By decision dated in April 2010, the Board remanded the case for additional development. By decision dated in October 2012, the Board granted a compensable rating for spastic colon and gastroesophageal reflux disease, but denied service connection for left carpal tunnel syndrome, an initial rating in excess of 10 percent for chronic lumbar strain, initial compensable ratings for hemorrhoids and left knee patellofemoral syndrome. The issues of entitlement to service connection for disability manifested by groin/scrotal pain, an initial evaluation in excess of 30 percent for major depressive disorder, and entitlement to initial compensable evaluations for right knee patellofemoral syndrome, right shin splints, and bilateral hand dyshidrotic eczema were remanded for further development. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Joint Motion for Partial Remand, the parties requested that the Court vacate that portion of the Board's decision that denied the claim entitlement to an initial compensable evaluation for left knee patellofemoral syndrome. It was noted that the appellant did not contest the Board's denial of service connection for left carpal tunnel syndrome and higher ratings for spastic colon, gastroesophageal reflux disease, left shin splints, and hemorrhoids such that those issues were considered abandoned. It was noted that the Court did not have jurisdiction over the claims of service connection for disability manifested by groin or scrotal pain, an initial rating in excess of 30 percent for major depressive disorder and initial compensable ratings for right shin splints, right knee patellofemoral syndrome and bilateral hand dyshidrotic eczema because they were in remand status and not before the Court. In a February 2013 Order, the Court vacated the Board's October 2012 decision that denied entitlement to an initial compensable rating for left knee patellofemoral syndrome and remanded the matter for further consideration and instructions consistent with the February 2013 Joint Motion for Partial Remand. In correspondence dated in July 2013, the appellant appears to raise the issues of entitlement to service connection for a sleep disorder and for a liver condition, to include as secondary to medication prescribed for gout. These matters are not properly before the Board for appellate review and are referred to the RO for appropriate consideration. Following review of the record, 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 Veteran asserts that the symptoms associated with his service-connected left knee disorder are more disabling than reflected by the currently assigned disability evaluation and warrant a compensable rating. The Board observes that following the most recent supplemental statement of the case in January 2012, additional clinical evidence was received in support of the claim that includes treatment for knee complaints. This evidence has not previously been considered in the adjudication of this case. Neither the Veteran nor his representative has waived consideration of this evidence by the agency of original jurisdiction. Moreover, upon submission of the additional evidence, that appellant requested that the case be remanded to the RO for review of the newly submitted information. The Board cannot consider this evidence in the first instance and must remand this matter to the RO for a supplemental statement of the case. See 38 C.F.R. §§ 19.38, 20.1304(c) (2012). As the matter is otherwise being remanded, and some of the new evidence pertains to the left knee, further examination is also indicated to obtain current findings of the left knee disorder. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to ascertain the nature and extent of his left knee pathology. All indicated tests should be accomplished and all findings reported in detail. The claims folder should be made available to the examiner prior to completion of the examination report. 2. After taking any further development deemed appropriate, re-adjudicate the issue on appeal. This should include consideration of material submitted from the Veteran since the last supplemental statement of the case. If the benefit is not granted, provide the appellant and his representative a supplemental statement of the case and afford them the opportunity to respond before the case is returned to the Board for appellate disposition. 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). _________________________________________________ MICHAEL D. LYON 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).