Citation Nr: 1507351 Decision Date: 02/19/15 Archive Date: 02/26/15 DOCKET NO. 09-22 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for right knee status post arthroscopic surgery, meniscal tear with partial anterior cruciate ligament (ACL) injury. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1999 to April 2004. This case comes to the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for right knee status post arthroscopic surgery, meniscal tear with partial ACL injury, initially rated as 10 percent disabling, effective April 6, 2004. This case is currently under the jurisdiction of the RO in Columbia, South Carolina. In May 2012, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in July 2012 for further development. It returned to the Board and, in a May 2013 decision, the Board denied an increased initial rating for right knee status post arthroscopic surgery, meniscal tear with partial ACL injury, but granted a separate 10 percent rating for arthritis of the right knee. A Motion for Reconsideration was denied in October 2013. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's May 2013 decision was vacated pursuant to a June 2014 Order, following a Joint Motion for Remand (JMR). The parties, in pertinent part, requested that the Court vacate the Board's May 2013 decision regarding the denial of an initial rating in excess of 10 percent for right knee status post arthroscopic surgery, meniscal tear with partial ACL injury, and remand the matter so that the Board could obtain an additional VA examination that could be, on its face, in compliance with orders for a VA examination that reviewed the Veteran's private treatment records of surgery that were given in the July 2012 remand. The Court granted the joint motion and remanded the case to the Board. The issue of entitlement to an increased rating for degenerative joint disease of the knees has been raised by the Veteran's representative in December 2014 correspondence. This has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND As noted, the June 2014 JMR discussed several deficiencies in the May 2013 Board decision regarding the denial of an initial rating in excess of 10 percent for right knee status post arthroscopic surgery, meniscal tear with partial ACL injury. The July 2012 remand ordered that the Veteran's private treatment records be obtained and that a VA examination should be subsequently performed with the examiner reviewing the obtained medical records. Although the records were obtained, they were not received prior to an August 2012 VA compensation examination that was performed. While a subsequent examination was performed in October 2012, there is no affirmative indication in the examination report that the examiner reviewed the medical records. Thus, the JMR asserts that the VA examinations were not in compliance with the July 2012 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). In addition, the JMR indicates that the Board did not give full reasons and bases as to why a rating in excess of 10 percent or a separate rating was not warranted under the provisions of Diagnostic Code 5258, for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. In addition, in correspondence from the Veteran's representative, dated in December 2014, it is indicated that the Veteran has stated that his right knee disability has worsened since his most recent VA examination. Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2014). That correspondence was also associated with lay statements documenting the Veteran's right knee disability, consideration of which by the AOJ was specifically not waived. Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records should be obtained and added to the claims folder. 2. Following completion of the above, the AOJ should arrange for the Veteran to undergo a medical examination to ascertain the current nature and severity of his right knee status post arthroscopic surgery, meniscal tear with partial ACL injury. The examiner should provide a thorough description of the appellant's service-connected disorder and render objective clinical findings concerning the severity of the disability, to include observations of pain on motion, deformity, excess fatigability, incoordination, weakened movement and other functional limitations, if any. The examiner must then discuss whether there is dislocation of the semilunar cartilage and whether there are resultant frequent episodes of "locking," pain, and effusion into the joint. The claims folder must be made available for review in connection with this examination. The examiner is requested to affirmatively acknowledge review of the Veteran's medical and other pertinent records and should provide complete rationale for all conclusions reached. 3. Thereafter, the AOJ should readjudicate the issue on appeal, specifically considering an increased or separate rating under Diagnostic Code 5258. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. They should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2014). 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 2014). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).