Citation Nr: 1637571 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 09-12 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating greater than 20 percent prior to January 28, 2015, and greater than 30 percent from March 1, 2016, for residuals, left knee injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 1988 to November 1999, with additional Reserve and/or National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted entitlement to service connection for residuals, left knee injury and assigned a 10 percent disability rating, effective September 29, 2006. In his April 2009 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge (VLJ); however, in April 2010 he withdrew his hearing request. The Board remanded the claim in May 2012 and July 2014 for additional development. Subsequently, a November 2014 rating decision increased the Veteran's left knee disability rating to 20 percent, effective September 29, 2006, the date his claim for entitlement to service connection was received. In addition, a March 2015 rating decision granted a temporary evaluation of 100 percent from January 28, 2015, to February 29, 2016, based on surgical or other treatment necessitating convalescence following a left total knee arthroplasty. That rating decision assigned a 30 percent rating from March 1, 2016. As the temporary total rating represented a complete grant of benefits for that time period, no further consideration of that period is required; however, as the other increased ratings were not complete grants of available benefits those periods remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In an August 2015 decision, the Board denied the Veteran's claim for an initial rating greater than 20 percent prior to January 28, 2015, for the left knee disability. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2016 Joint Motion for Partial Remand, in a July 2016 Order the Court vacated the August 2015 Board decision with respect to the denial of an increased initial rating greater than 20 percent for the left knee disability and remanded the claim to the Board. The Joint Motion for Partial Remand concluded that the August 2015 Board decision failed to adequately discuss and evaluate the contradictory evidence of left knee instability and the possibility of granting a separate disability rating pursuant to Diagnostic Code 5257. As noted above, a March 2015 rating decision assigned a 30 percent disability rating for the Veteran's left knee residuals from March 1, 2016. This portion of the increased rating claim was not adjudicated in the August 2015 Board decision, as the Veteran's one-year period of convalescence for his total left knee replacement was ongoing. As his temporary total rating and convalescent period has expired and the 30 percent rating currently is in effect, this portion of the increased rating claim has been added to the issue, as listed above. In addition to the above-listed issues, in a February 2016 rating decision the RO denied entitlement to service connection for sleep apnea. In a December 2015 rating decision, the RO denied entitlement to service connection for a bilateral pes planus disability. An August 2015 rating decision granted entitlement to service connection for a left knee scar and assigned a noncompensable rating, effective January 28, 2015. In a December 2013 rating decision, the RO denied entitlement to service connection for bilateral toe nail fungus. The Veteran submitted separate notices of disagreement for each of these issues and the RO sent letters acknowledging receipt of the notices of disagreement. Moreover, the issues are listed as on appeal as a result of the notices of disagreement in the electronic Veterans Appeals Control and Locator System (VACOLS). Accordingly, as receipt of the notices of disagreement has been acknowledged by the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a notice of disagreement had not been recognized. As VACOLS and the electronic claims file reflect that the notices of disagreement have been recognized and that additional action is pending at the RO with regard to these disability claims, Manlincon is not applicable in this case. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board concludes that a remand for additional development is necessary prior to final adjudication of this claim. Initially, the Board notes that additional relevant VA treatment records have been added to the electronic claims file since the last adjudication of the Veteran's claim by the Agency of Original Jurisdiction (AOJ). In addition, in August 2016 the Veteran submitted a September 2015 private treatment record. Accompanying that record was a signed statement by the Veteran requesting that his claim be remanded to the AOJ for review of the additional evidence, with the understanding that such an action could significantly delay the Board's review of the appeal. Although the Board notes that the September 2015 treatment record itself covers a period not on appeal, as it is part of the time period when the Veteran is in receipt of a temporary total rating for his left total knee replacement, given the additional and unconsidered VA treatment records (as well as the evidence of ongoing VA treatment for the left knee) and the Veteran's clear intent that the matter be remanded for initial consideration by the AOJ, the Board finds that a remand is required. Moreover, a VA examination is not of record for the period following the Veteran's left total knee replacement. As such, the Veteran should be scheduled for an examination to ascertain his current left knee condition following the total knee replacement. Accordingly, the case is REMANDED for the following action: 1. Associate with the electronic claims file all VA treatment records from February 2016 to the present. 2. Schedule the Veteran for appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected left knee disability. The electronic claims file must be made available to the examiner for review in conjunction with the examination, and the examiner should note that it has been reviewed. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. 3. After the above is complete, readjudicate the Veteran's claim. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. 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 2014). _________________________________________________ MICHAEL LANE 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) (2015).