Citation Nr: 0810374 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-06 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a disability rating higher than 20 percent for right knee arthritis. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from February 1967 to December 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board is remanding this case to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. REMAND Before addressing the merits of the claim, the Board finds that additional development of the evidence is required. First, with respect to the increased-rating claim for right knee arthritis, the veteran has not received a Veterans Claims Assistance Act (VCAA) letter complying with a recent decision of the U. S. Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Second, the veteran's VA treatment records on file only date to March 2005, some three years ago. So if he has since received additional relevant treatment, these records should be obtained. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Third, another VA examination is needed to determine the current severity of the veteran's right knee disability. His last VA examination was in June 2005, so also about three years ago. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Court determined the Board should have ordered a contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Accordingly, this case is REMANDED for the following development and consideration: 1. Send the veteran another VCAA notice letter to comply with the recent holding of the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this regard, this letter should notify him that, to substantiate his claim for a higher rating: (A) he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of his right knee disability and the effect this worsening has on his employment and daily life; (B) if the Diagnostic Code (DC) under which this condition is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by him demonstrating a noticeable worsening or increase in severity of the right knee disability and the effect of this worsening has on his employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the veteran. For example, he must be advised that a higher rating for his right knee disorder is possible with medical evidence showing he has ankylosis, limitation of flexion to 15 degrees, limitation of extension to 20 degrees, malunion of the tibia or fibula with marked knee or ankle disability, or nonunion of the tibia or fibula with loose motion requiring a brace. In addition, a separate rating for his right knee disability is possible if there is instability, apart from the arthritis, or limitation of flexion and extension of the same joint. (C) he also must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (D) as well, this notice must provide examples of the types of medical and lay evidence he may submit (or ask the Secretary to obtain) that are relevant to establishing his entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. 2. Also ask the veteran whether he has received any additional treatment for his right knee disability since March 2005. And if he has, obtain these additional records. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 3. Then schedule the veteran for a VA examination to assess the current severity of his right knee arthritis. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences to his claim for a higher rating. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand, must be made available for review of the veteran's pertinent medical history - including, in particular, the records of his recent treatment. Based on a comprehensive review of the claims folder, as well as a current physical examination of the veteran, the examiner should discuss all impairments associated with the right knee disability, including the extent of the arthritis, range of motion in this knee (extension to flexion) and all other associated functional impairment - including pain/painful motion, more or less movement than normal, weakened movement, premature/excess fatigability, incoordination, swelling, deformity or atrophy from disuse, etc. And, if possible, the examiner should specify any additional range-of-motion loss due to any of these factors, especially during prolonged, repetitive use of this knee or when the veteran's symptoms are most prevalent (e.g., during "flare-ups"). See 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2007); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). As well, the examiner should indicate whether the veteran has instability in his right knee and, if he does, the extent and severity of it (slight, moderate or severe). 4. Then readjudicate the claim for a rating higher than 20 percent for the right knee disability in light of any additional evidence since the January 2006 statement of the case (SOC). If this claim is not granted to the veteran's satisfaction, send him and his representative a supplemental SOC (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claim 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 or by 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 Supp. 2007). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).