Citation Nr: 1752652 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 17-45 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a higher evaluation for a total right knee replacement (previously rated as residuals, fracture, right femur, with degenerative joint disease, right knee, with pain), currently rated as 10 percent disabling prior to March 28, 2017, and as 30 percent disabling since April 1, 2018. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from December 1961 to November 1963. This matter comes before the Board of Veterans' Appeals (Board) from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which continued the Veteran's 10 percent rating for his right knee. The Veteran did not perfect his claim of entitlement to an increased rating for his PTSD claim in his August 2017 VA Form 9 and noted that he wished to only appeal his right knee claim. In an August 2017 rating decision, the RO increased the disability rating for the Veteran's right knee disorder to 100 percent for total knee, effective March 28, 2017, and continued it for one year before assigning a 30 percent evaluation from April 1, 2018. As this decision did not grant the full benefits sought for the entirety of the appeal period, the claim remains in appellate status for all but the period where the Veteran was in receipt of a 100 percent rating for his disability. See AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran underwent a knee and lower leg examination in April 2017. The examiner noted that the Veteran's current symptoms included post-surgery recovery with pain, swelling, and a decreased range of motion. As a result, the examiner was unable to test the Veteran's right knee. Given that the April 2017 examiner was unable to test the Veteran's right knee, the Veteran should be rescheduled for another examination after he has had time to recover, presumably after his temporary 100 percent rating ends, in order to assess the severity of any residuals associated with his total knee replacement. Finally, as the case is being remanded, all relevant ongoing VA medical records should also be requested on remand. 38 U.S.C. § 5103A(c) (2012); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records. If any identified records are not obtained, notify the Veteran and document the unavailability of the records. 2. Contact the Veteran to ask if there are any private records pertaining to his right knee disability or other records relevant to the claim. After obtaining any necessary releases, request any records identified by the Veteran. If any identified records are not obtained, notify the Veteran and document the unavailability of the records. 3. Then, no sooner than April 2018, schedule the Veteran for a VA examination to assess the current severity of his service-connected right knee disability. The examiner must review the claims file and should note that review in the report. All indicated studies, including x-rays, should be performed, and the examiner should discuss the severity and symptomatology of the Veteran's right knee disability. The proper Disability Benefits Questionnaire should be completed. The examiner should record the results of range of motion testing for pain on BOTH active and passive motion and in weight-bearing AND non-weight-bearing, and if possible, with the range of the opposite undamaged joint (left knee) in light of Correia. 4. After completing steps one, two, and three, the RO must review the medical examination report to ensure it adequately responds to the above instructions. If it is deficient in this regard, the RO must return the case to the examiner for further review and discussion. 5. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ JENNIFER HWA 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) (2017).