Citation Nr: 1756674 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-48 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a separate rating for left knee instability. 2. Entitlement to a separate rating for right knee instability. ATTORNEY FOR THE BOARD M.D., Associate Counsel INTRODUCTION The Veteran served on active duty from June 1982 to December 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The case is now under the jurisdiction of the VA RO in Winston-Salem, North Carolina. The Veteran was previously represented in these matters by a Veterans' service organization. However, in a March 2011 statement, the Veteran informed the VA that he had revoked that organization's representation of him. Accordingly, the Veteran is now unrepresented in these matters. These issues were remanded in April 2013. Following the development, the Board addressed the Veteran's entitlement to a higher rating for his service connected left and right knee disability in a March 2016 decision. In that decision, the Board denied entitlement to a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following surgery associated with a left knee injury; denied a rating in excess of 10 percent for the left knee condition on the basis of limited flexion; granted entitlement to a disability rating of 10 percent, and no higher, for the left knee condition, on the basis of limited extension, for the period from September 17, 2008 through June 1, 2009; denied a disability rating in excess of 10 percent for the right knee condition; and denied entitlement to separate compensable evaluations for the left and right knee instability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a May 2017 CAVC memorandum decision, the Court set aside and remanded the portions of the March 2016 Board decision denying separate evaluations for left and right knee instability and affirmed the remainder of the Board's March 2016 decision. The Court and the Secretary agreed that the Board provided inadequate reasons or bases for denying separate evaluations for left and right knee instability under Diagnostic Code 5257. The matter has been returned to the Board for readjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was last afforded a VA examination to determine the severity of his bilateral knee disabilities in March 2015. Based on the findings of the Court, the Board finds an additional examination in necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all updated VA treatment records of the Veteran and associate them with the record. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2. Thereafter, schedule the Veteran for a VA compensation examination reassessing the severity of any left and right knee instability. All necessary diagnostic testing and evaluation must be performed. The Board is primarily concerned with the left and right knee instability, so a detailed examination and discussion of such should be the paramount concern of the VA examiner, including in terms of indicating whether the instability is "slight, moderate or severe." To facilitate providing this necessary information and as part of the examination, the examiner should review the relevant records in the claims file, including a complete copy of this remand. It is most essential the examiner provide explanatory rationale for all opinions expressed, if necessary citing to specific evidence in the file supporting conclusions. After review of the medical and lay evidence, the examiner should provide an opinion as to whether it is at least as likely as not that there is instability in the right and/or left knee. If the examiner finds such instability, the examiner should discuss the severity of this instability. If the examiner finds that there is not instability, the examiner should discuss the basis for this, taking into account the Veteran's lay testimony that there is instability. 3. Thereafter, the agency of original jurisdiction (AOJ) should review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). _________________________________________________ Nathaniel J. Doan 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).