Citation Nr: 0812141 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 07-00 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a rating in excess of 30 percent for the veteran's right knee, status post total knee arthroplasty. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The veteran served on active duty from May 1974 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The veteran's file was subsequently transferred to the RO in Reno, Nevada. The veteran was afforded a Board hearing, presided over by the undersigned, in February 2008. The Board further notes that, during the veteran's February 2008 Board hearing, the matter of total disability due to individual unemployability (TDIU) was raised. Following the completion of the directives of the following REMAND, the RO should develop the veteran's TDIU claim accordingly. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND During the veteran's February 2008 Board hearing, the veteran testified that his service connected right knee, status post total knee arthroplasty, had worsened since his last VA examination in June 2005. He noted increased pain, daily swelling, a decrease in range of motion, locking, and instability. He also testified that a recent bone scan had shown loosening of the prosthetic device. Indeed, a copy of a January 2008 bone scan report, submitted at the time of the hearing, was suspicious of either prosthetic loosening or a possible infection. A February 2008 clinical note appears to have narrowed the diagnosis to prosthetic loosening. VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a). This duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Where the available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). In light of the apparent changes/worsening of the veteran's right knee disability, an additional VA examination is required. Accordingly, the case is REMANDED for the following action: 1. The RO should review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA and subsequent interpretive authority. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); VAOPGCPREC 7-2004 (July 16, 2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). A notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The letter must also include notice sufficient to notify the veteran that to substantiate his claims for an increased rating for his service-connected right knee, status post total knee arthroplasty, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity and the effect that worsening has on his employment and daily life. Examples of the types of medical and lay evidence that the veteran may submit should also be included. The letter should indicate that a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (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. It should also provide at least general notice with respect to the requirements of 38 C.F.R. § 4.71a, specifically Diagnostic Codes 5055, 5256, 5261, and 5262. 2. The RO/AMC should take appropriate steps to contact the appellant and obtain the names and addresses of all medical care providers who treated the veteran for his service-connected right knee disorder. Of particular interest are medical records from Las Vegas VAMC, from 2007 to present. If these records do not exist or are otherwise unavailable, that should be noted and associated with the veteran's claims file. 3. Following the receipt of these records, to the extent possible, the RO should arrange for the veteran to be scheduled for an orthopedic examination to assess the current severity of his service-connected right knee, status post total knee arthroplasty. The RO should advise the veteran that failure to report for a scheduled VA examination without good cause may have adverse consequences for his claim. The claims folder must be made available to the examiner for review for the examination and the examination report must indicate whether such review was accomplished. The examination must include range of motion findings for the right knee, and any other test deemed necessary by the examiner. The examiner is asked to identify and describe right knee symptomatology, including any functional loss associated with the service-connected disability due to more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. If there is no evidence of any of the above factors on examination, the examiner should so state. The examiner should also inquire as to whether the veteran experiences flare-ups. If so, the examiner should describe, to the extent possible, any additional functional loss or limitation of motion during such flare-ups. Finally, the examiner should opine as to whether the veteran is unemployable solely as a result of his service-connected disability. 4. After completing any additional necessary development, the RO should readjudicate the issue on appeal, considering all applicable rating criteria. If the disposition remains unfavorable, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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 (West Supp. 2007). _________________________________________________ MICHAEL A. HERMAN Acting 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).