Citation Nr: 1417068 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 08-21 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating higher than 10 percent for residuals of right knee post-arthroscopy for the period beginning on February 9, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This appeal is remanded to the RO via the Appeals Management Center in Washington, DC. VA will notify you if further action is required on your part. REMAND The Veteran was afforded a VA examination pursuant to the Board's June 2012 remand. There, the examiner noted that the Veteran had a knee replacement sometime in 2009. The examiner also explained that the Veteran has residuals from his right knee replacement. Specifically, the Veteran has intermediate degrees of residual weakness, pain or limitation of motion. The examiner also noted that upon x-ray, "[b]ilateral total knee arthroplasties project in expected location, with no definite hardware failure or loosening seen." There are no records within the claims file, other than the June 2012 VA examination report, showing that the Veteran had a right knee replacement. Thus, on remand, the agency of original jurisdiction (AOJ) should contact the Veteran and elicit the details regarding any right knee replacement. Further, after obtaining the necessary releases, the AOJ must obtain any outstanding records relating to any right knee replacement. Knee replacements are rated under Diagnostic Code 5055. A 100 percent rating is assigned for one year following implantation of a knee prosthesis for a service-connected knee disability, followed thereafter by a 60 percent rating when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to Diagnostic Codes 5256, 5261, and 5262. The minimum rating is 30 percent under Diagnostic Code 5055. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The June 2012 VA examiner should tender an addendum opinion detailing the residuals associated with the right knee replacement. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any right knee replacement that he may have undergone, particularly in 2009. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Furnish the Veteran's claims file to the July 2012 VA examiner in order to provide an addendum to the July 2012 VA examination report. The examiner should specifically state in her addendum that the entire claims file has been reviewed, including this REMAND order as well as her previous VA examination report. After reviewing the claims file, the examiner should clarify whether and when the Veteran underwent a right knee replacement (prosthesis) and specify whether there are chronic residuals consisting of severe painful motion or weakness and/or any other residuals of that right knee replacement? All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. If the July 2012 VA examiner is unavailable to respond, a comparably qualified examiner can render an addendum which addresses the above. If the July 2012 VA examiner or any subsequent examiner cannot opine to the above without examination of the Veteran, he should be afforded an examination. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal in light of all the evidence of record and applying Diagnostic Code 5055 if appropriate. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and give them an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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. 2013). _________________________________________________ THOMAS J. DANNAHER 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).