Citation Nr: 1328825 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-14 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected status post right anterior cruciate repair and related intraoperative repair of meniscal/ligamental structures in the right knee with mild osteoarthritis changes (claimed as right knee ACL tear, arthritis of right leg, and bone spur). 2. Entitlement to a rating in excess of 10 percent for service-connected lumbar degenerative disc disease. 3. Entitlement to a rating in excess of 10 percent for service-connected chronic right ankle strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active duty service from December 2004 to December 2006 with additional Nation Guard service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in August 2008, a statement of the case was issued in March 2010, and a substantive appeal was received in April 2010. In March 2010, a temporary evaluation of 100 percent was assigned effective November 2, 2009 based on right knee replacement surgery. A 10 percent rating was continued from March 1, 2010. The Veteran testified at a Board videoconference hearing in June 2012. The appeal is being 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 was last afforded a VA examination for his service-connected right knee, right ankle, and low back disabilities in November 2007. The Board notes that the Veteran underwent right knee surgery in November 2009 (for which period he was granted a total disability rating). The Veteran specifically testified that this disability has worsened since this operation. Tr. at 10. It appears that a review examination was to be scheduled in 12 months, but the record does not include the report of any such examination. Although not entirely clear, it appears from the Veteran's testimony that he may be alleging in increase in severity of the right ankle and low back disabilities since the most recent VA examination in 2007. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Under the circumstances, the Board finds that another VA examination is appropriate. Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain and associate with the claims folder any updated treatment records regarding the Veteran's right knee, right ankle, and/or low back. 2. Then, the Veteran should be scheduled for appropriate VA examinations to determine the severity of his service-connected right knee, right ankle, and low back disabilities. It is imperative that the claims folder be reviewed in conjunction with the examinations. All special tests and clinical findings should be clearly reported to allow for application of VA rating criteria. Range of motion testing should be accomplished for the right knee, right ankle, and low back. The examiner should also report the point (in degrees) that any range of motion is limited by pain. Any additional functional loss due to weakness, fatigue, and/or incoordination should be reported, to include an estimate of any additional limitation of motion during flare-ups. With regard to the low back examination, the examiner should also address whether the Veteran suffers any neurological impairment, to include radiculopathy as due to his low back disability. The frequency and duration of any incapacitating episodes over the previous 12 months should also be reported. With regard to the right knee, the examiner should also clearly report whether there is recurrent subluxation or lateral instability and, if so, whether it is slight, moderate, or severe in degree. 3. After completion of the above and any further development deemed necessary by the AMC/RO, the issues on appeal should be readjudicated. The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ ALAN S. PEEVY 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).