Citation Nr: 1326568 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-46 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased rating for service-connected left knee status post arthroscopic debriding, synovitis, with residual patellofemoral syndrome and degenerative joint disease, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for service-connected right knee status post partial medial meniscectomy, mild extensor tendonosis and quadriceps muscle group atrophic changes and degenerative joint disease, currently evaluated as 10 percent disabling. 3. Entitlement to an initial evaluation in excess of 10 percent for service-connected right knee patellar subluxation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to August 1997. This matter comes before the Board of Veterans Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In January 2009, the RO denied claims for increased ratings for the Veteran's service-connected left knee status post arthroscopic debriding, synovitis, with residual patellofemoral syndrome and degenerative joint disease, and right knee status post partial medial meniscectomy, mild extensor tendonosis and quadriceps muscle group atrophic changes and degenerative joint disease. In November 2012, the RO granted service connection for right knee patellar subluxation, and assigned a 10 percent evaluation. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). In May 2013, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge, who has rendered the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (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 Veteran asserts that he is entitled to higher ratings for his service-connected right knee and left knee disabilities. The Veteran's most recent examination for his knee disabilities was in October 2012. During his hearing, held in May 2013, the Veteran testified that his knee symptoms had worsened since his most recent VA examination. He further testified that he was not currently receiving any VA or non-VA treatment for his knees. Accordingly, on remand, the Veteran should be scheduled for examinations of his bilateral knees. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95, 60 Fed. Reg. 43186 (1995). The Veteran is advised that it is his responsibility to report for his examinations and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim(s). 38 C.F.R. § 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current severity of his service-connected bilateral knee disabilities. The claims files must be made available to the examiner for a review of the Veteran's pertinent medical history, and the examiner should indicate that the Veteran's C-file has been reviewed in association with the examination. Any necessary diagnostic testing and evaluation should be performed. All clinical manifestations, including symptoms and resulting complications, and range of motion studies expressed in degrees, should be provided. The examiner should also state whether there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups, or when any of these joints are used repeatedly. All limitation of function must be identified. 2. Readjudicate the issues on appeal. If any of the determinations remains unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence, and applicable law and regulations considered. The appellant and his representative should be given an opportunity to respond to the SSOC. 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). _________________________________________________ F. JUDGE. FLOWERS 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).