Citation Nr: 1341402 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-17 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased disability rating for chondromalacia/arthritis of the right knee, currently evaluated as 10 percent disabling. 2. Entitlement to a temporary total disability rating (TTR) for the service-connected right knee disability under the provisions of 38 C.F.R. § 4.30 based upon convalescence following a July 3, 2006, surgical procedure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active military service from September 1970 to September 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2006 and November 2007 rating decisions of the Department of Veterans Affairs Regional Office (RO) in Chicago, Illinois. By those rating actions, the RO continued a 10 percent disability rating assigned to the service-connected right knee disability and denied a TTR for the service-connected right knee disability under the provisions of 38 C.F.R. § 4.30 based upon convalescence following a July 3, 2006, surgical procedure, respectively. The Veteran appealed the above-cited rating actions to the Board. In April 2011, the Veteran testified before the undersigned Veterans Law Judge at the Chicago, Illinois RO. A copy of the hearing transcript has been associated with the claims file. In July 2011, the Board remanded this matter for further development which has been completed, and the case has been returned to the Board for appellate consideration. As noted in the July 2011 remand, the issue of entitlement to service connection for gout, to include as secondary to the service-connected right knee disability, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is again referred to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims. 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. REMAND In remanding this matter in July 2011, the Board provided specific instructions to the AMC/RO. The Board instructed the AMC to re-adjudicate the Veteran's claim of entitlement to an increased disability rating for chondromalacia and arthritis of the right knee, currently evaluated as 10 percent disabling, with consideration as to whether separate evaluations are warranted for instability and flexion/extension associated with the right knee disorder pursuant to VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 9-2004 (Sept. 17, 2004). The Board also instructed the RO to "adjudicate the raised claim of entitlement to service connection for gout, to include as secondary to the service-connected chondromalacia and arthritis of the right knee as noted in the Introduction. " Review of the two supplemental statements of the case dated in August 2012 shows that the AMC failed to consider the Veteran's whether separate evaluations for warranted for the right knee pursuant to VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, the RO did not adjudicate the raised claim of entitlement to service connection for gout. Therefore, on remand, these actions must be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following actions: 1. Re-adjudicate the Veteran's claim of entitlement to an increased disability rating for chondromalacia and arthritis of the right knee, currently evaluated as 10 percent disabling, with consideration as to whether separate evaluations are warranted for instability and flexion/extension associated with the right knee disorder pursuant to VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 9-2004 (Sept. 17, 2004). 2. Adjudicate the raised claim of entitlement to service connection for gout, to include as secondary to the service-connected chondromalacia and arthritis of the right knee as noted in the Introduction. 3. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. PAPPAS 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).