Citation Nr: 1326387 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-40 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an evaluation in excess of 10 percent for service-connected residuals of post-operative removal of medial meniscus of the right knee with severe degenerative arthritis. REPRESENTATION Appellant represented by: Blinded Veterans Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The appellant had active service from January 1946 to August 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In March 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. The Board remanded the case to the RO in April 2013 for additional evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Board finds the Veteran's claim must be remanded for additional development prior to adjudication. In the April 2013 remand, the Board directed that the Veteran should be scheduled for a VA joints examination. The RO sent the Veteran a letter in April 2013, notifying him that the closest VA medical facility to him would contact him to schedule a VA examination. The claims file contains a print out from the Phoenix VA Medical Center (VAMC), which noted that the Veteran failed to report to a May 2013 knee and lower leg examination. In June 2013, the Veteran's representative claimed that the Veteran did not report for the May 2013 VA examination because he never received notice of the date and time of the examination. The representative requested that the Veteran be scheduled for a new VA joints examination. Pursuant to 38 C.F.R. § 3.655, when a Veteran fails, without good cause, to report for a VA examination in conjunction with a claim for increased disability compensation benefits, VA shall deny the claim. The Board finds the Veteran's assertion that he did not receive notice of the May 2013 VA examination to be credible. Thus, the Veteran has provided good cause concerning his failure to report for his May 2013 VA examination. In the interest of due process and fairness, and to afford the Veteran every opportunity to substantiate his claim, the Board finds that he should be afforded another opportunity to undergo VA examination to assess the present severity of his service-connected right knee disability. See 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA joints examination. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA and VBMS) should be made available to the examiner for review in conjunction with the examination. The examiner must fully describe the current status of the Veteran's service-connected residuals of post-operative removal of medial meniscus of the right knee. a) All indicated tests and studies should be performed, including range of motion studies in degrees for both knees. b) The examiner should determine whether the right knee disability is manifested by weakened movement, excess fatigability, or incoordination. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the additional range-of-motion loss due to any weakened movement, excess fatigability, pain, flare-ups or incoordination, expressed in degrees, if possible. c) The examiner should provide an opinion concerning the degree of severity (whether mild, moderate, or severe) of any instability or subluxation of the right knee. The examiner should also determine if the right knee locks and if so the frequency of the locking. A full rationale must be provided for all stated medical opinions. 2. Thereafter, readjudicate the issue on appeal of entitlement to an evaluation in excess of 10 percent for service-connected residuals of the post-operative removal of medial meniscus, right knee, with severe degenerative arthritis. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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 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). _________________________________________________ M. E. LARKIN 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).