Citation Nr: 1806361 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 11-00 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased initial disability rating for a left knee disability, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1983 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In the March 2009 rating decision on appeal, the RO granted service connection for a left knee disability and assigned an initial 10 percent rating. In a July 2014 rating decision, the RO increased the Veteran's rating from 10 percent to 30 percent, effective December 19, 2013. In an August 2017 rating decision, the RO reassigned the Veteran's 30 percent rating under a separate diagnostic code, effective June 1, 2015. The Veteran has not indicated he is satisfied by the ratings assigned, and as such, the issue remains in appellate status. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in November 2017. A transcript of the hearing is of record. The Board notes there are additional issues for which the Veteran has perfected an appeal, but that are not yet ripe for Board review. Specifically, the Veteran filed a VA Form 9, substantive appeal, in November 2017, with respect to his claims for increased ratings for a right leg disability and a left ankle disability. When an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36 , 20.1304(a). The required notifications have not been sent in regard to these issues. Thus, the Board declines to take any further action on these issues at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103 (2017); Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). These issues will be the subject of a later Board decision as appropriate. REMAND The Board notes that where the evidence indicates that a service-connected disability has worsened since the last VA examination, and that examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d) (West 2015); 38 C.F.R. § 3.159(c)(4) (2017); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). In this case, the Veteran was last afforded a VA examination to assess the severity of his service-connected left knee disability in June 2015. At his November 2017 hearing, the Veteran stated that his left knee disability had worsened since the June 2015 examination. Under these circumstances, the Board finds a remand is warranted in order to afford the Veteran a contemporaneous examination to assess the severity of his left knee disability. Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Afford the Veteran a VA examination to determine the current severity of his service-connected left knee disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Ensure the examiner provides all information required for rating purposes. 3. Undertake any other development determined to be warranted. 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. REYNOLDS 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).