Citation Nr: 1342546	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO.  10-32 206	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an increased rating for left knee disability.

2.  Entitlement to a disability rating in excess of 10 percent for right knee disability.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

S. Lipstein


INTRODUCTION

The Veteran served on active duty from March 1972 to July 1992.  

This matter came to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

In April 2012, the Veteran testified at a video conference board hearing at the RO before the undersigned Veterans Law Judge.  A transcript of that hearing has been associated with his claims folders.  

The Board remanded the left knee matter in December 2012 for further development.  Also in December 2012, the Board denied entitlement to an increased rating for right knee disability.  The Veteran timely appealed to the Court of Appeals for Veterans Claims (Veterans Court).  In September 2013, pursuant to a Joint Motion for Partial Remand ("Joint Motion"), the Veterans Court vacated and remanded the Board's December 2012 right knee decision.  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

Regarding the Veteran's left knee, the record shows it was surgically replaced in July 2012, and as such it was assigned a 100 percent schedular rating for a year.  Its residuals are currently evaluated as 30 percent disabling.  Prior to the surgery, the knee was evaluated as 20 percent disabled for arthralgia with limitation of extension, and a separate 10 percent evaluation was assigned for left knee semilunar cartilage with symptomatic residuals.  This separate 10 percent rating was awarded in a February 2013 rating action and made effective from 1999 to the date of the knee replacement surgery.  In any event, formal post surgery evaluation does not appear to have been accomplished with respect to the left knee.  It should be done prior to the Board entering a decision.  

With respect to the right knee, the Joint Motion determined the last VA examination was inadequate given inconsistent entries with respect to range of motion findings.  A new examination should be conducted.  

With respect to both knees, relevant on-going records of treatment should be obtained.  

Accordingly, the case is REMANDED for the following actions:

1.  Obtain relevant VA treatment records from the Charleston VA Medical Center, dating since December 2012.  

2.  After the above actions, schedule the Veteran for a VA knee examination to determine the current nature and extent of his service-connected left and right knee disabilities.  The claims file and relevant electronic treatment records should be reviewed by the examiner in conjunction with the examination.  All indicated tests and studies should be performed, including range of motion testing.  The examiner should address the symptomatology and functional impairment associated with each knee disability, noting particularly the affect of pain on range of motion and whether there is instability, weakness, excess fatigability, and/or incoordination and any resultant functional loss, including during any flare-ups.  To the extent possible, the examiner should express any such functional loss in terms of additional degrees of limited motion.

3.  Then, readjudicate the Veteran's claims.  If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case and given a reasonable opportunity to respond.  

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).

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 E. KILCOYNE
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).