Citation Nr: 18159616
Decision Date: 12/19/18	Archive Date: 12/19/18

DOCKET NO. 16-10 410
DATE:	December 19, 2018
REMANDED
Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the left knee is remanded.    
REASONS FOR REMAND
The Veteran served on active duty with the United States Army from December 1977 to August 1985.  
1. Entitlement to a disability rating in excess of 10 percent for a left knee disability is remanded
For numerous reasons, the Veteran’s claim for an increased rating must be remanded.  
First, since the time of the previous January 2016 Statement of the Case, additional relevant evidence has been added to the Veteran’s claims file without a waiver allowing the Board to view this evidence in the first instance.  Accordingly, in order to protect the Veteran’s due process rights, this additional evidence must be reviewed by the Regional Office or Agency of Original Jurisdiction before the Board reviews it.
While the Board regrets the additional delay offered by this remand, it will ultimately be beneficial to the Veteran.  For during the course of his appeal, it appears that the Veteran has undergone a left total knee replacement.  To this point, the Veteran’s left knee disability has been rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5259.  The Veteran has since filed a claim for a temporary total rating.  Knee replacements, however, have a separate Diagnostic Code (DC 5055) apart from the ordinary temporary total rating criteria, however, that allow for a year of a 100 percent rating from the date of the implantation of the prosthesis.  On remand, the RO must therefore consider the assignment of this other Diagnostic Code for the Veteran’s disability, as well as the residuals that result from that surgery.  
Again, the Board acknowledges the Veteran’s desire to have his case adjudicated by the Board.  The Board, however, is bound by the applicable statutes and regulations that require RO review of newly submitted and obtained evidence.  The Board also acknowledges the Veteran’s statements regarding his current financial situation.  The Veteran is encouraged to contact his representative to consider filing a motion with the Board to advance his case on the docket.  
The matters are REMANDED for the following action:
1. With any necessary assistance from the Veteran, obtain additional VA or private treatment records regarding the Veteran’s treatment for and surgical intervention on his left knee.  
2. Schedule the Veteran for a VA examination to determine the current severity of his left knee disability, to include the residuals of his left total knee arthroplasty.  
3. Following the above ordered development, readjudicate the Veteran’s appeal and issue a Supplemental Statement of the Case to him and his representative that includes a review of all evidence generated as a result of this remand, as well as all evidence submitted, obtained, or associated with his claims file since the time of the previous January 2016 Statement of the Case.  


 
Evan M. Deichert
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Kovarovic, Associate Counsel