Citation Nr: 1339009 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 06-11 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating in excess of 10 percent for right knee instability. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to November 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In December 2006 the Veteran was afforded a hearing before the Board, sitting at the Indianapolis RO, before a Veterans Law Judge (VLJ) that is no longer employed by the Board. Consequently, in August 2013, the Board advised the Veteran by letter that the law requires that the VLJ who conducts a Board hearing on appeal must participate in any decision on that appeal. 38 C.F.R. § 20.707 (West 2002). In addition, the Veteran was asked whether he desired to have a new Board hearing. In August 2013 correspondence, the Veteran, through his representative, declined the offer for another hearing. A November 2011 Board decision denied a rating in excess of 10 percent for osteomalacia of the right knee with Osgood Schlatter and degenerative osteoarthritis and also assigned a separate 10 percent rating for right knee instability. Thereafter, the Veteran appealed the Board's denial of his claim to the Court. In April 2013 the Court issued a Memorandum Decision vacating that part of the Board's decision that denied an initial rating in excess of 10 percent for right knee instability. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Veteran has indicated that he is unemployed, he has not specifically attributed the unemployment to his right knee disability, and the Board notes that the August 2010 VA examiner stated that the Veteran's right knee disability had no significant effects on the Veteran's usual occupation. As such, the issue of entitlement to a TDIU is not raised by the record at this time. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that as the record currently stands, further development, including additional VA examination, is required. The Board observes that the United States Court of Appeals for Veterans Claim's (Court) November 2011 Memorandum Decision essentially concluded that the Board had overly relied on an October 2009 medical record in determining the level of the Veteran's right knee instability. The Court also indicated that the Board had failed to properly address the Veteran's lay reports of right knee instability. The Board observes that in November 2013 written argument the Veteran's representative essentially indicated that the Veteran's right knee instability had worsened since the last VA examination. When a Veteran asserts that the severity of a disability has increased since the most recent rating examination, as in the present case, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995). Given the Veteran's claims of increased symptomatology since his August 2010 VA examination, and given the comments from the Court's November 2011 Memorandum Decision, a new VA examination is warranted to determine the current severity of his right knee instability disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should also obtain and associate the Veteran's complete VA treatment records since August 19, 2010. 2. The Veteran should be afforded a VA examination to determine the severity of his service-connected right knee instability disability. The claims file must be made available to the examiner for review in connection with the examination. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. The examiner is asked to specify the amount, if any, of any right knee subluxation or right knee instability that may be present. 3. Thereafter, readjudicate the issue currently on appeal. If the benefit sought on appeal remains denied, the Veteran and representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran 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). _________________________________________________ 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) (2013).