Citation Nr: 1805468 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 09-28 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for left knee limitation of motion. 2. Entitlement to an initial rating greater than 20 percent for left knee instability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served in the United States Army with active duty from June 1977 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. When this claim was previously before the Board in May 2017, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. Unfortunately, there has not been substantial compliance with each of the mandates of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant'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 In the May 2017 remand, the Board instructed the AOJ to obtain any outstanding evidence pertinent to the Veteran's claims, afford him a VA examination, and adjudicate the claims on appeal. Review of the evidence associated with VVA and the VBMS shows that additional VA records were added to VBMS but none of the other directives have been accomplished. It would appear that the file was returned to the Board prematurely. For the sake of brevity, the Board will not duplicate the discussion previously outlined in the May 2017 remand; however, a copy of the May 2017 remand must be provided to the VA examiner conducting the examination outlined below. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the record. 2. After obtaining authorizations from the Veteran, associate with the record any outstanding private treatment records. 3. Once any outstanding records have been received, schedule the Veteran for a VA orthopedic examination. Access to the electronic claims file, to include a copy of this Remand and the May 2017 Remand, must be made available to the examiner, who will acknowledge receipt and review of these materials. The examiner is to report the range of motion measurements in degrees for both the right and left knees. The range of knee motion should be tested actively and passively, in weight bearing, and after repetitive use. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. In providing this explanation, the examiner should consider the Veteran's lay statements regarding his decreased range of motion. The extent of any weakened movement, excess fatigability and incoordination should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should provide an opinion as to the severity of the Veteran's left knee instability or subluxation. All opinions must be supported by a complete rationale. If the examiner must resort to speculation for any of the requested opinions, an explanation as to why this is so is required. 4. Then, adjudicate the claims. If any decision remains unfavorable to the Veteran, issue a supplemental statement of the case, allow the appropriate time for a response, and then return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. J. ALIBRANDO 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).