Citation Nr: 1328413	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  09-32 054A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, 
California


THE ISSUE

Entitlement to an initial rating greater than 10 percent for 
left knee meniscus tear.


REPRESENTATION

Appellant represented by:	California Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

Anthony M. Flamini, Counsel


INTRODUCTION

The Veteran had active service from November 1987 to April 
2008. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2008 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
San Diego, California.  

This matter was most recently remanded by the Board for 
additional development in March 2013.

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 seeks entitlement to an initial rating greater 
than 10 percent for a left knee meniscus tear.  In March 
2013, the Board remanded the Veteran's claim for further 
development.  Specifically, the Board directed the RO to 
afford the Veteran a VA joints examination in order to 
assess the nature and severity of his left knee disorder.  
In addition, the Board directed the RO to notify the Veteran 
that he must report for the examination and cooperate in the 
development of the claim, and that failure to report for a 
VA examination without good cause may result in denial of 
his claim.  

In correspondence dated in March 2013, the Appeals 
Management Center (AMC) informed the Veteran that it would 
be developing additional evidence pertaining to his appeal.  
This correspondence further explained that the AMC had 
contacted the nearest VA medical facility to schedule the 
Veteran for an examination in connection with his claim, and 
that the VA medical facility would notify him of the date, 
time, and place of the examination.  However, a review of 
the claims file, to include the Virtual VA database, does 
not reveal the existence of additional correspondence 
providing the Veteran with the date, time, and place of his 
VA examination.

Rather, the record contains a copy of a March 18, 2013, 
request by the AMC for a compensation and pension 
examination pertaining to the knee and lower leg at the VA 
Mission Valley Clinic in San Diego, California.  The claims 
file also contains a record printed on May 24, 2013, 
indicating that the Veteran's VA examination was cancelled 
on April 9, 2013, due to the Veteran's failure to report.  
Significantly, there is no evidence of record showing that 
the Veteran was notified of the date, time, and place of his 
scheduled examination, nor that he was notified that failure 
to report to his scheduled examination without good cause 
may result in denial of his claim.  A supplemental statement 
of the case issued in May 2013 simply stated that the 
Veteran failed to report to a VA examination dated April 9, 
2013, and did not list as evidence any correspondence sent 
to the Veteran notifying him of the scheduled examination.  

The Federal Circuit recently held that it was error for the 
Court of Appeals for Veterans Claims to rely on affidavits 
not of record at the time of the Board decision to support a 
finding that the presumption of regularity applied to 
mailing notices of examinations.  See Kyhn v. Shinseki, 716 
F.3d 572 (Fed. Cir. 2013).  There is no indication of notice 
to the Veteran and no affidavits or other similar evidence 
for the Board to reply on here, and based on the holding in 
Kyhn, affidavits cannot be created and added to the file 
later.  Therefore, remand is required to provide the Veteran 
notice of the examination and to include a copy of the 
notice in the file.

Based on the above, the Board is unable to determine whether 
the Veteran received any notice of the April 2013 VA 
examination.  As such, the Board finds that the AMC did not 
substantially comply with the directives of the March 2013 
remand.  RO compliance with remand directives is not 
optional or discretionary, and the Board errs as a matter of 
law when it fails to ensure compliance.  See Stegall v. 
West, 11 Vet. App. 268, 271 (1998).  As such, a remand for 
corrective action is required.  Id.  Given the lack of 
documentation as discussed above, the RO must provide the 
Veteran another opportunity for VA examination consistent 
with the Board's directives of the March 2013 remand.

Accordingly, the case is REMANDED for the following action:

1. Afford the Veteran a VA joints 
examination in order to assess the nature 
and severity of his left knee disorder.  
The Veteran's VA claims file should be 
made available to the examiner for use in 
the study of this case and the report of 
such examination should indicate that the 
claims file was made available and 
reviewed.  The examination should include 
a detailed review of the Veteran's history 
and current complaints, as well as a 
comprehensive clinical evaluation and any 
and all indicated diagnostic testing 
deemed necessary.  Such examination should 
include detailed range of motion studies 
of the left knee and the examiner should 
determine whether there is any additional 
functional loss (i.e., additional loss of 
motion) of the left knee due to pain or 
flare-ups of pain supported by adequate 
objective findings, or additional loss of 
left knee motion due to weakness on 
movement, excess fatigability, 
incoordination, or any other relevant 
symptom or sign.  Any additional 
limitation of motion should be expressed 
in degrees.

2.  Notify the Veteran in writing that he 
must report for the examination and 
cooperate in the development of the claim.  
Failure to report for a VA examination 
without good cause may result in denial of 
the claim.  38 C.F.R. §§ 3.158, 3.655 
(2013).  If the Veteran does not report 
for the scheduled examination, associate a 
copy of the examination notice letter with 
the claims file, and indicate whether any 
notice that was sent was returned as 
undeliverable.

3.  After undertaking the development 
above, readjudicate the Veteran's claim.  
If the benefit sought on appeal remains 
denied, provide a supplemental statement 
of the case to the Veteran and his 
representative, and an appropriate period 
of time in which to respond.  Then, return 
the appeal to the Board.
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).



_________________________________________________
ROBERT C. SCHARNBERGER
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).