Citation Nr: 1808817	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  13-02 680	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to a rating in excess of 10 percent for the period prior to October 20, 2015 for right knee disability, and to a rating in excess of 30 percent for the period from December 1, 2016. 


REPRESENTATION

Veteran represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

P. Noh, Associate Counsel






INTRODUCTION

The Veteran had active military service from June 1984 to August 1985.

This matter came before the Board of Veterans' Appeals (Board) on appeal from an November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  

By way of background, in the November 2011 rating decision, the RO assigned a 10 percent disability rating for the right knee disability.  During the course of the appeal, the Veteran was assigned a 100 percent disability rating for his right knee disorder due to a total knee arthroscopy; he was assigned a 30 percent rating for the period following the expiration of the temporary total evaluation.

The appeal is REMANDED to the Agency of Original Jurisdiction.  VA will notify the Veteran if further action is required. 


REMAND

The record reflects that the Veteran underwent a total right knee replacement in October 2015.  Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, he was assigned a 100 percent evaluation, ending November 30, 2016.  In order to determine the proper rating to assign the right knee disorder, the RO scheduled the Veteran for a VA examination in August 2016, several months prior to the cessation of the total rating.  The examiner at that time noted that the Veteran was still within a year of the knee replacement surgery, and specifically recommended that the Veteran be examined after the one year period had elapsed.  To date, the August 2016 examination remains the last time the Veteran's right knee was evaluated.

In light of the above, the Board finds that another VA examination is required in this case.

Accordingly, this case is REMANDED for the following actions:

1.  Schedule the Veteran for a VA examination of his right knee disorder by an examiner with appropriate expertise, preferably conducted by the examiner who conducted the August 2016 examination, to determine the nature and severity of the service-connected right knee disability.  The claims file must be made accessible to the examiner and any indicated diagnostic tests and studies must be accomplished. The studies must include range of motion testing, and such testing must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.

The examiner is requested to provide a thorough rationale for any opinion provided. If the examiner is/are unable to provide an opinion without resorting to speculation, the examiner should explain why a definitive opinion cannot be provided. 

2.  Thereafter, readjudicate the claim.  If any decision is adverse to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, and then return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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 (2012). 


____________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs