Citation Nr: 1341333	
Decision Date: 12/16/13    Archive Date: 12/31/13

DOCKET NO.  11-29 905	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee, status-post arthroscopic surgery, with painful motion.


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 May 1989 to June 1996.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which continued a 10 percent rating for the Veteran's left knee disability and extended the temporary 100 percent rating based on convalescence until August 1, 2009.  He filed a notice of disagreement in December 2010.   In correspondence dated in September 2011, the Veteran clarified that he is only disagreeing with the 10 percent rating following termination of his temporary 100 percent rating.  A statement of the case was issued in November 2011 and the Veteran submitted a substantive appeal in November 2011.  The Veteran also testified at a Board videoconference hearing in February 2013. 

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 on his part is required.


REMAND

The Veteran is seeking an increased evaluation of his service-connected degenerative joint disease of the left knee.  He was afforded a VA examination in November 2009.  Since then, he has submitted an opinion from a private physician which arguably suggests an increase in severity, to include subluxation.  Additionally, the Veteran testified that he wears a knee brace due to instability and giving way.  Tr. at 5.  Under the circumstances, a contemporaneous examination to assess the current severity of his disability is warranted.


Accordingly, the case is REMANDED for the following actions:

1.  The RO should obtain any VA treatment records (since May 2012) not already of record relevant to the claim on appeal.

2.  The Veteran should then be scheduled for an appropriate VA examination to determine the severity of his service-connected left knee disability.  It is imperative that the claims folder be reviewed in conjunction with the examination. 

The examiner should report examination findings to allow for application of VA rating criteria.  Range of motion should be reported.  Additionally, the examiner should report the point (in degrees), if any, at which range of motion is shown to be limited by pain.  Any additional functional loss due to weakness, incoordination and/or fatigue should also be reported, to include any estimated additional loss of motion during flare-ups.

3.  After completion of the above, the RO should review the expanded record and determine if the benefits sought can be granted.  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 if in order for further appellate review.

The appellant 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 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).



_________________________________________________
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) (2013).