Citation Nr: 1341052 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 08-30 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a disability rating in excess of 30 percent for service-connected status post total right knee replacement. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from October 1978 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. On his October 2008 substantive appeal, submitted via VA Form 9, the Veteran indicated that he wanted a Board hearing at his local RO. The Veteran was scheduled FOR a Travel Board hearing in October 2010, but he did not appear for the hearing and requested that it be rescheduled. In October 2011, the Board determined that the Veteran presented good cause for scheduling another hearing. Accordingly, this claim was remanded in October 2011 in order TO afford the Veteran a Travel Board hearing, as requested. The Veteran was, again, scheduled a Travel Board hearing in March 2012 but he did not appear for the hearing. The Veteran, instead, requested that the hearing be rescheduled and his request was granted. As a result, the Veteran was scheduled a Travel Board hearing in June 2012 and notices of the scheduled hearing were sent to his address of record. See letters to the Veteran dated April and May 2012. However, the Veteran did not report for the scheduled hearing and his representative recently submitted a statement indicating that they were not sure why the Veteran did not report for the hearing and they have been unsuccessful in reaching him. See October 2013 Representative Statement. As such, the Board finds the Veteran has not provided good cause as to why another hearing should be scheduled in this case and further finds that all due process has been afforded the Veteran with respect to his right to a hearing. Parenthetically, the Board notes that the claim on appeal has been previously styled as a rating reduction case, which requires special due process considerations under 38 C.F.R. § 3.343. However, the issue on appeal is appropriately styled as an increased rating claim, as reflected on the first page of this decision. In this regard, as shown below, the Veteran is appealing the reduction of his 100 percent temporary rating to 30 percent, effective August 1, 2007. The evidence shows the Veteran was awarded the 100 percent rating because the rating criteria under DC 5055 specifically contemplate the assignment of a 100 percent rating for one year following a total knee replacement, after which a rating is assigned based upon residuals of the disability. See 38 C.F.R. § 4.71a, DC 5055. In this case, the RO assigned the minimum rating allowable under DC 5055 after a total knee replacement and the Veteran's representative has stated that the Veteran is seeking a rating higher than 30 percent from August 1, 2007. See February 2011 Informal Hearing Presentation. Therefore, the Board finds that the issue on appeal is not a reduction issue but is as correctly styled as reflected on the first page of this decision. Finally, the Board notes that, in addition to the paper claims file, there is an electronic claims file in Virtual VA which contains an October 2013 statement from the Veteran's representative, as well as other documents that are either duplicative of those contained in the paper claims file or are irrelevant to the instant claim. For reasons discussed below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND For the sake of clarity, the Board will briefly summarize the procedural history of this appeal. By rating decision of May 1988, the RO granted service connection for right anterior cruciate ligament tear and right medial meniscus tear, post operative status, and assigned an initial, 20 percent rating under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5261, effective January 14, 1988. In a February 2003 rating decision, the RO assigned a 30 percent rating for the service-connected right knee disability, effective February 6, 2002. However, effective October 29, 2002, a temporary 100 percent rating was assigned pursuant to 38 C.F.R. § 4.30, based on evidence showing the Veteran underwent right knee arthroscopy in October 2002. A 10 percent rating was assigned from March 1, 2003. In a March 2003 rating decision, the RO assigned a 40 percent rating for the right knee disability, effective March 1, 2003. In April 2004, the RO granted a 100 percent rating pursuant to DC 5055, effective March 23, 2004, based on evidence showing the Veteran underwent a total right knee replacement in March 2004. In May 2007, the RO decreased the Veteran's rating to 30 percent under DC 5055, effective August 1, 2007. The Veteran has asserted that his service-connected right knee disability warrants a rating higher than 30 percent following his total right knee replacement, i.e., from August 1, 2007. As relevant to this appeal, the evidentiary record contains VA examination reports dated July 2008 and May 2009, private treatment records dated from June 2007 to March 2008, and VA treatment records dated from March 2007 to September 2008. The Veteran's representative has argued that the Veteran should be scheduled a new VA examination because the May 2009 VA examination was inadequate. In this regard, his representative specifically noted that the VA examiner did not conduct new x-rays but relied upon x-rays conducted in 2005 to evaluate the severity of the Veteran's condition. See October 2013 Representative Statement. The Board notes that approximately 4 1/2 years have passed since the most recent VA examination was conducted in 2009 and that the evidentiary record does not contain any treatment records dated from September 2008 to the present. In this regard, the Board notes that it is likely the Veteran receives periodic treatment for follow-up and maintenance of his service-connected total right knee replacement. As such, the Board concludes that a remand is needed in order to (1) schedule the Veteran for a new VA examination to evaluate the current nature and severity of his service-connected status post total right knee replacement and (2) obtain any outstanding private or VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record, i.e., evidence documenting treatment for his service-connected right knee disability since August 2007. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. Treatment records from the VA Medical Center in Portland, Oregon, dated from September 2008 to the present, must be obtained and associated with the paper or paperless claims file. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. 2. After records and/or responses received have been associated with the claims file, arrange for the Veteran to undergo a VA examination to evaluate the current nature and severity of his service-connected status post total right knee replacement. Any indicated evaluations, studies, and tests should be conducted, to include all range of motion studies. The claims folder must be made available to the examiner for review prior to the examination. A) The examiner should state whether residuals from the knee replacement results in 1) residuals consisting of intermediate degrees of residual weakness, pain or limitation of motion or 2) chronic residuals consisting of severe painful motion or weakness in the affected extremity. B) The examiner should perform range of motion testing on the right knee and determine whether there is additional limitation of motion due to pain, weakness, fatigability, lack of endurance, or incoordination upon repetitive motion. The examiner should also state whether there is additional loss of motion during times of right knee flare-ups and if so, identify the additional loss of motion during those times. C) The examiner should state whether the Veteran has unfavorable flexion ankylosis and if so, the examiner should report in degrees the point in which the joint is ankylosed. D) State whether the residuals of the knee replacement result in impairment of the tibia and fibula consistent with nonunion of, with loose motion, requiring brace. All opinions expressed must be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, with an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran need take no action until so informed and he 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. 2013). _________________________________________________ K.OSBORNE 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).