Citation Nr: 0002443 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 94-07 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for degenerative arthritis of the right knee. 3. Whether there was clear and unmistakable error in rating decisions prior to October 1992. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from June 1975 to August 1975, June 1976 to October 1976, December 1976 to December 1978, and June 1979 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In August 1998, the Board issued a decision denying service connection for disability of the tibia or fibula and right ankle and remanding the issue of entitlement to service connection for a left knee disability. It was also concluded in that decision that the issue of entitlement to service connection for degenerative arthritis of the right knee was moot and that the issue of whether there was clear and unmistakable error in ratings prior to October 1992 was not in appellate status. By memorandum decision dated in March 1999, the United States Court of Appeals for Veterans Claims (Court) affirmed the denial of service connection for disability of the tibia or fibula and right ankle disorder, dismissed the appeal with respect to service connection for a left knee disability, and remanded the Board's decision with respect to the issues of service connection for degenerative arthritis of the right knee and whether there was clear and unmistakable error in rating decisions prior to October 1992. A copy of the Court's memorandum decision has been included in the veteran's claims file. REMAND The Board's August 1998 decision remanded the issue of entitlement to service connection for a left knee disability. The Court has indicated that there is a timely notice of disagreement with the October 1992 RO decision holding that there was no clear and unmistakable error in previous ratings. A statement of the case has not been issued with respect to this issue and the veteran's representative has requested appropriate development in this regard. The Court also indicated that additional consideration should be given to whether or not the veteran is entitled to a separate disability rating for degenerative arthritis of the right knee. In light of the above, the appeal is REMANDED to the RO for the following: 1. The actions requested in the Board's August 1998 remand with respect to the issue of entitlement to service connection for a left knee disability should be completed. 2. After undertaking any appropriate development the RO should adjudicate the issue of whether or not the veteran is entitled to a separate disability rating for degenerative arthritis of the right knee. 3. The RO should issue a statement of the case relating to the issue of whether there is clear and unmistakable error in rating decisions prior to October 1992. All appropriate appellate procedures should then be followed, including determining whether or not a timely substantive appeal has been received. 4. If any benefit sought on appeal is not granted to the veteran's satisfaction or if a timely notice of disagreement is received with respect to any other matter, the veteran and his representative should be provided a supplemental statement of the case, if appropriate, on all issues in appellate status and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to the ultimate outcome warranted. No action is required of the veteran until he is otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 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 ROs 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. U. R. POWELL Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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).