Citation Nr: 0813192 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-01 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for residuals of a meniscal tear of the left knee. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The veteran served on active duty from April 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. 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 on his part. REMAND A review of the claims file reveals that a remand is necessary in order to properly adjudicate the veteran's claim for an initial evaluation in excess of 10 percent for residuals of a meniscal tear of the left knee. The Board notes that the veteran last underwent a joints examination in October 2003, some 4-1/2 years ago. At that time, x-rays revealed minimal left knee arthritic changes and knee joint calcification. The veteran submitted a statement in April 2007 in which he averred that his left knee disability had worsened. VA outpatient treatment reports dated from May 2003 to May 2007 reveal that the veteran reported left knee pain and swelling in April 2007. He underwent a magnetic resonance imaging (MRI) of the left knee in April 2007 which revealed a complex bucket handle tear of the medial meniscus with flipped fragments in the intercondylar notch and the anterior aspect of the anterior horn medial meniscus, horizontal tear of the posterior horn of the lateral meniscus extending into the meniscal body, a posterior cruciate ligament (PCL) cyst, popliteus bursitis, and chondrocalcinosis consistent with calcium pyrophosphate dehydrate (CPPD). The veteran underwent a steroid injection in April 2007. In May 2007 the veteran reported pain and swelling again and synovial fluid was withdrawn from the knee and Kenalog was injected. The Board notes that the veteran is qualified, as a lay person, to report symptoms such as pain and swelling of his left knee. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Likewise, where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination). In light of the above, the Board believes that an additional medical examination regarding the current severity of the veteran's left knee disability would be helpful in deciding the claim on appeal. The Board notes that the VA outpatient treatment reports dated in May 2007 also indicate that the veteran was interested in a surgical referral for his left knee disability. It is not clear whether the veteran was seen for such a referral. However, any records promulgated by VA dated after May 2007 should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The veteran should be contacted and requested to identify any sources of treatment, both VA and private, for his service-connected left knee disability. Any outstanding records identified by the veteran should be obtained and associated with the claims file and any records promulgated by VA dated after May 8, 2007, should be obtained and associated with the claims file. 2. A VA orthopedic examination should thereafter be scheduled to determine the extent and severity of the veteran's left knee disability. The claims folder should be made available to the examiner for review of pertinent documents therein in connection with the examination. The examination report should reflect that such a review was conducted. All necessary tests and studies, including range of motion studies, should be conducted. The orthopedic examination report must discuss any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, and pain with use, and provide an opinion as to how these factors result in any limitation of function. If the veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of motion (beyond that shown clinically). This should be done both in terms of flexion and extension. VAOPGCPREC 09-2004. The examiner should note whether there is recurrent subluxation and/or lateral instability and, if present, the severity thereof. (The veteran is hereby notified that it is his responsibility to report for a scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2007).) 3. Thereafter, review the claims file to ensure that the requested development has been completed. In particular, review the requested examination report to ensure that it is responsive to and in complete compliance with the directives of this remand, and if it is not, take corrective action. 4. After undertaking any other development deemed appropriate, re- adjudicate the issue on appeal. If the benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ BABARA B. COPELAND 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).