Citation Nr: 0813348 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-17 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased rating for a left knee disability, characterized as degenerative arthritis with limitation of flexion, rated as 10 percent disabling effective prior to December 19, 2006. 2. Entitlement to an increased rating for a left knee disability, characterized as degenerative arthritis with limitation of extension, rated as 10 percent disabling effective prior to December 19, 2006. 3. Entitlement to an increased rating for a left knee disability, characterized as lateral instability, rated as 10 percent disabling prior to May 20, 2005, and as 0 percent disabling effective prior to December 19, 2006. 4. Entitlement to an increased rating for a left knee disability, rated as 30 percent disabling effective as of February 1, 2008. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from November 1974 to November 1977. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted a separate 10 percent rating for limitation of extension of the left knee, continued the 10 percent rating for limitation of flexion of the left knee, and decreased a 10 percent rating to a 0 percent rating for lateral instability of the left knee. By a March 2007 supplemental statement of the case, the RO granted a temporary total rating based upon convalescence following a total left knee arthroplasty, for the period from December 19, 2006 to January 31, 2008, after which time a 30 percent rating became effective. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND Additional development is needed prior to further disposition of the claims. The notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim(s). Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The U.S. Court of Appeals for Veterans Claims (Court) recently held in Vazquez-Flores v. Peak, 22 Vet. App. 37 (2008) that for a claim for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that to substantiate a claim the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Id. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's 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 claimant. Additionally, the claimant must be notified that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based upon 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. Id. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing 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. Id. Here, a review of the claims folder shows that sufficient notice has not been sent to the veteran. The RO provided the veteran with a VCAA notice letter in April 2005. This notice letter did not specifically notify the veteran that he should provide evidence of the effect that worsening disabilities had on his employment and daily life (such as a specific measure or test). The letter also did not notify the veteran that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the of the symptoms of the condition for which the disability compensation is being sought, including their severity and duration, and their impact on employment and daily life. Thus, on remand the RO should provide corrective VCAA notice. The veteran underwent a total left knee arthroplasty (TKA) in December 2006. He contends that because he was advised to have the knee replacement as early as December 2003, his left knee disability was more severe than the combined 20 percent rating, in effect prior to the TKA, reflected. He additionally asserts that his left knee disability is more severe than the 30 percent rating currently in effect reflects. VA records dated from January 2005 to March 2005 show that the veteran complained of severe pain and limitation of motion of the left knee. X-ray examination revealed endstage osteoarthritis of the medial, lateral, and patellofemoral compartments. VA records dated from July 2006 to December 2006 also show that the veteran continued to receive treatment for severe left knee pain and that he should have been scheduled for a TKA but somehow had not yet been scheduled. He underwent the TKA in December 2006. Treatment records dated from December 2006 to February 2007 show that he was recuperating from the TKA. The VA clinical records that have been associated with the claims file show that the veteran received treatment for severe left knee pain. However, there are gaps in the records obtained, in that records dated prior to January 2005, records dated between March 2005 and July 2006, and since February 2007 have not yet been obtained. Because comprehensive clinical records have not yet been associated with the claims file, the Board is unable to ascertain the full level of severity of the veteran's left knee disability both prior to and since his TKA. Because these records are relevant to the veteran's claim for an increased rating, they should be obtained. 38 C.F.R. § 3.159(c)(2) (2007); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the record reflects that the veteran sought private treatment for his left knee. The records associated with such treatment have not yet been requested. Because these records are relevant to the veteran's claim for an increased rating, they should be obtained. Finally, VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2007); Robinette v. Brown, 8 Vet. App. 69 (1995). The veteran last underwent VA examination of his left knee in May 2005. Because the veteran has not undergone VA examination since his TKA in December 2006, the Board finds that an additional examination is necessary in order to fairly evaluate his entitlement to a rating in excess of 30 percent since February 1, 2008. Accordingly, the case is REMANDED for the following actions: 1. Provide the veteran with VCAA notice that is compliant with the requirements of Vazquez-Flores v. Peak, 22 Vet. App. 37 (2008). Specifically, the notice should advise the veteran that to substantiate his claims for increased ratings, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase severity of the disability and the effect that worsening has on his employment and daily life. The veteran should also be afforded a copy of the applicable criteria needed for increased (higher) ratings under the applicable Diagnostic Codes for rating the left knee disability. Also advise the veteran that if an increase in disability is found, 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 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. In addition, provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing 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. Obtain and associate with the claims file records from the VA Medical Center in Denver, Colorado dated from April 2004 to January 2005, from March 2005 to July 2006, and from February 2007 to the present. 3. After obtaining the necessary authorization from the veteran, obtain and associate with the claims file all private medical records pertaining to treatment for his left knee from Kaiser. All attempts to secure these records must be documented in the claims folder. 4. After any additional evidence has been obtained, the RO should schedule the veteran for a VA orthopedic examination to determine the current severity of his service-connected left knee disabilities. The claims file must be made available to the VA examiner, and the examiner should review the file prior to the examination. All appropriate tests and studies, including X-rays and range of motion studies of the knee, reported in degrees, should be accomplished. All findings should be made available to the primary physician prior to the completion of his or her report, and all clinical findings should be reported in detail. In that report the examiner must: a) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service- connected left knee disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. b) Indicate whether, and to what extent, the veteran experiences any functional loss due to pain and/or any of the other symptoms during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. c) Identify all impairments affecting the left knee. The examiner should specifically indicate whether arthritis is present, and whether there is recurrent subluxation or lateral instability of the knee. If instability is present the degree of that impairment should be classified as either "slight," "moderate," or "severe." The examiner should also indicate whether, in the left knee, there is ankylosis, dislocation or removal of cartilage, impairment of the tibia or fibula, or genu recurvatum. d) Classify the degree to which each identified left knee disabilities interfere with the veteran's ability to obtain and maintain substantially gainful employment. 5. Then, readjudicate the veteran's claims for increased rating as phrased in the title page of this remand. If any action remains adverse to the veteran, issue a supplemental statement of the case and allow an appropriate opportunity for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2007) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. 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). _________________________________________________ C. TRUEBA 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).