Citation Nr: 0000515 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 95-41 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for chronic ligament tear, left knee, with quadriceps atrophy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from August 1973 to May 1979, and from August 1979 to November 1993. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs (hereinafter VA) regional office in St. Petersburg, Florida (hereinafter RO). REMAND The RO is advised that the Board is obligated by law to ensure that the RO complies with its directives. The United States Court of Appeals for Veterans Claims (hereinafter Court) has stated that compliance by the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In the remand dated in September 1997, the Board requested that the RO obtain all pertinent medical records subsequent to December 1996. In response to the RO's request for information regarding such treatment, the veteran stated that he had been treated at the VA clinic in Orlando, Florida, and provided a release for such information. However, it does not appear from the evidence of record that the RO requested any such documents. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that the issue on appeal is based on the assignment of an initial rating for the veteran's left knee following an initial award of service connection for that disability. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Id.; Francisco, 7 Vet. App. at 58. Instead, in Fenderson, the Court held that where a veteran appealed the initial rating assigned for a disability, "staged" ratings could be assigned for separate periods of time based on facts found. Fenderson, 12 Vet. App. at 126. The Board has recharacterized this issue on appeal in order to comply with the recent opinion by the Court in Fenderson. The Board observes that examination findings showing the current level of the veteran's service-connected left knee disorder are not relevant to the appeal of the initial assignment of the 10 percent disability rating because that rating is based on the evidence that the RO had, or should have had, at the time that it assigned the rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). However, as noted above, when considering an initial rating, "staged" ratings can be assigned for separate periods of time based on facts found. Fenderson, 12 Vet. App. at 126. Accordingly, this issue is remanded for the following actions: 1. All additional and pertinent VA and private medical treatment records subsequent to December 1996, to include any VA examinations conducted in 1999, should be obtained and associated with the claims file. 2. After receipt of such records, if any, the RO should readjudicate the issue of entitlement to an initial evaluation in excess of 10 percent for the veteran's service-connected left knee disorder. The RO may consider assigning "staged" ratings, if appropriate. See Fenderson, 12 Vet. App. at 126. Thereafter, a supplemental statement of the case should be issued to the veteran and his representative. The supplemental statement of the case should phrase the issue as one for an "initial" or an "original" rating and not one for an "increased" rating. See Fenderson, 12 Vet. App. 126. After the veteran and his representative have had an opportunity to respond to the supplemental statement of the case, the case should be returned to the Board. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the regional offices to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). JOY A. MCDONALD Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).