Citation Nr: 0812592 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 05-02 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for a left knee disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a back and spine disorder. 3. Entitlement to service connection for a right hip disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The veteran had active military service from January 1977 to February 1980. This appeal to the Board of Veterans' Appeals (Board) concerning the left knee disability arose from a July 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for this condition and assigned a 10 percent rating retroactively effective from September 22, 2003, the date of receipt of this claim. The veteran wants a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating that when a veteran timely appeals his initial rating, just after establishing his entitlement to service connection for a condition, VA must consider his claim in this context - which includes determining whether he is entitled to a "staged" rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). A more recent January 2005 RO decision, during the pendency of this appeal concerning the rating for his left knee disability, determined the veteran had not submitted new and material evidence to reopen a previously denied claim for service connection for a back and spine condition. The RO also denied his claim for service connection for a right hip condition. And in response, he submitted a timely notice of disagreement (NOD) in March 2005 to initiate an appeal of both of these additional claims. According to information recently indicated in VACOLS, the RO has since issued him a statement of the case (SOC) concerning these additional issues. But there is no indication of whether he has responded to the SOC by filing a timely substantive appeal (VA Form 9 or equivalent statement) to perfect an appeal to the Board concerning these additional issues. So the Board must remand, rather than merely refer, these additional claims to the RO to have this clarified. See Manlincon v. West, 12 Vet. App. 238 (1999). For other reasons that will be explained, as well, the Board is also remanding the claim for a higher initial rating for the left knee disability to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. There is one other preliminary point worth mentioning. Also in that March 2005 statement (NOD, on VA Form 21-4138), the veteran raised a still additional claim for service connection for a right knee disorder secondary to his already service-connected left knee disability. See 38 C.F.R. § 3.310 (2007). However, the RO has not adjudicated this claim. So it is referred to the RO for appropriate development and consideration. The Board does not have jurisdiction to consider it, even in a remand, because the RO has not considered this claim in the first instance, much less denied it and the veteran initiated a timely appeal to the Board. See 38 C.F.R. § 20.200 (2007). See, too, Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not have jurisdiction over an issue not yet adjudicated by the RO). REMAND Before addressing the merits of the left knee claim, the Board finds that additional development of the evidence is required. First, another VA examination is needed to determine the current severity of this disability. See 38 U.S.C. § 5103A(d)(2) (West 2002 and Supp. 2007); 38 C.F.R. § 3.327(a) (2007). The veteran's last VA examination was in June 2004, so nearly four years ago. Thus, a more current examination would be helpful in deciding his appeal. This is especially true since he recently asserted that his left knee disability has "continued to deteriorate and adversely impact his lifestyle and activities." See informal hearing presentation by his representative, dated in April 2008. Also, his VA records through 2005 show additional treatment for this disability. 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). Therefore, a more current examination is needed to adequately rate the current severity of this left knee disability. Second, VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) (West 2002 and Supp. 2007). Specifically, VA is required to make reasonable efforts to obtain relevant records, including private records, that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2007). If after making such reasonable efforts VA is unable to obtain all of the relevant records sought, VA must so notify the claimant. Id. Such notice must identify the records not obtained, explain the efforts made to obtain them, and describe any further action VA will take on the claim. Id. VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1) (2007). In this case, in February 2004, the veteran provided a completed authorization (VA Form 21-4142) to obtain records from Dr. O., whom he identified as a physician who had provided him relevant treatment for his left knee condition. The veteran also personally provided a medical opinion letter from Dr. O. dated in October 2003 and a treatment record dated in March 2007. In the October 2003 letter, Dr. O. indicated the veteran had received treatment from him for pain and swelling in his left knee, and Dr. O offered a nexus opinion based on his treatment. Also, a March 2007 letter from this same physician noted the veteran was being prescribed pain medications for his left knee disability. These letters indicate the veteran has received private medical treatment for his left knee disability, the records of which are not presently in his claims file, possibly including a treatment asserted to have occurred in September 2003. See the veteran's authorization and consent form (VA Form 21-4142), dated in February 2004, for private medical records from Dr. O. Thus, these records are relevant in determining the severity of the veteran's left knee condition. The RO issued a request for the complete set of records from Dr. O in March 2004. It did not receive a response to that request. And there is no indication the RO issued a follow- up request or explained to the veteran what further action VA would take. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Consequently, a remand is required so the RO may comply with the duty to assist and properly follow up on its original request for all medical records from Dr. O. The RO (actually the AMC) also must send the veteran a Veterans Claims Assistance Act (VCAA) notice letter complying with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This letter should specifically advise him concerning the downstream disability rating and effective date elements of his claim, keeping in mind his claim initially arose in the context of him trying to establish his entitlement to service connection - since granted. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Lastly, as mentioned, according to information recently indicated in VACOLS, the RO has provided the veteran an SOC concerning the additional issues of whether he has submitted new and material evidence to reopen his claims for service connection for a back and spine disorder and whether he is entitled to service connection for a right hip disorder. But there is no indication of whether he has responded to the SOC by filing a timely substantive appeal (VA Form 9 or equivalent statement) to perfect an appeal to the Board concerning these additional issues. So the Board must remand, rather than merely refer, these additional claims to the RO to have this clarified. See again Manlincon v. West, 12 Vet. App. 238 (1999). See also 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, 20.302, 20.303, 20.304, 20.305, and 20.306. Accordingly, this case is REMANDED for the following development and consideration: 1. Ask the veteran whether he has received any additional treatment for his left knee disability since 2005. If he has, and the records are not already on file, obtain them. 2. Follow-up the March 2004 request for records from Dr. O. If it is determined these additional records are not forthcoming and that further attempts to obtain them would be futile, then expressly indicate this in the file and notify the veteran as required by 38 C.F.R. 3.159(c). 3. Also send the veteran a VCAA notice letter complying with the recent Court case of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Specifically, this letter must advise him of the downstream disability rating and effective date elements of his claim. 4. Schedule the veteran for a VA examination to determine the current severity of his left knee disability. He is hereby advised that failure to report for this scheduled VA examination, without good cause, may have adverse consequences on this claim. The examination should include any diagnostic testing or evaluation deemed necessary to assess the severity of this disability. The examination should comply with AMIE protocols. The claims file, including a complete copy of this remand, must be made available for review of the veteran's pertinent medical and other history. Based on a comprehensive review of the claims file, as well as a current physical examination of the veteran, the examiner should discuss all impairments associated with the left knee disability, including all ranges 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, pain on pressure or manipulation, and muscle spasm. 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). The examiner should indicate, as well, whether the veteran has instability and/or subluxation in his left knee. And if he does, the examiner should describe the severity of it (slight, moderate or severe) Conversely, if instability is not found, the examiner should clearly so state. 5. Then readjudicate the claim for an initial rating higher than 10 percent for the left knee disability in light of any additional evidence received since the May 2005 supplemental SOC (SSOC). If this claim is not granted to the veteran's satisfaction, send him and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. 6. Determine whether the veteran has submitted a timely substantive appeal (VA Form 9 or equivalent) in response to the SOC that, according to VACOLS, was issued concerning the additional issues of whether he has submitted new and material evidence to reopen his previously denied claim for service connection for a back and spine condition and whether he is entitled to service connection for a right hip condition. If, and only if, he submits (or has submitted) a timely substantive appeal in response to the SOC should these additional claims be returned to the Board. The veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ 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).