Citation Nr: 0814487 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 03-28 957 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to a rating in excess of 10 percent for patella- femoral syndrome, right knee, with indication of osteoarthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from July 1974 to July 1977, from February 1978 to January 1982, and from August 1990 to June 1991. The present matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision in which the RO denied the veteran's claim for a higher rating for his service-connected right knee disability. In October 2007, the appellant testified during a hearing before the undersigned at the RO; a transcript of that hearing is of record. 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 A review of the claims file reflects that further RO action on this appeal is warranted. As an initial matter, the Board notes that the United States Court of Appeals for Veterans Claims (Court) recently redefined VA's duty to notify claimants of the information and evidence necessary to substantiate a claim for an increased disability rating. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). As such, upon remand, the RO/AMC should provide compliant notice. After providing the required notice, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007). In this regard, during the October 2007 Board hearing, the veteran testified that since 2002 he had received physical therapy treatment for his right knee every three months for awhile, but during the hearing the veteran could not recall the time period for these visits or the names of the therapist and the clinic or physical therapy center where the physical therapy took place. His representative then asked the undersigned to keep the record open until the veteran had the opportunity to obtain and submit additional evidence possibly advantageous to the veteran's request for an increase. To ensure that all due process requirements are met, the RO should give the veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The Board is also of the opinion that a new VA examination would be probative. The most recent VA examination of the veteran's right knee is dated in April 2002. However, during his hearing in October 2007, the veteran testified that the severity of his right knee disability had increased since 2002. During that same hearing the veteran's representative requested that VA schedule the veteran for another examination. In light of the foregoing, the Board finds that a more contemporaneous examination is needed to properly evaluate whether the veteran is entitled to a higher rating. Accordingly, the RO should arrange for the veteran to undergo a VA examination at a VA facility by an appropriate health care professional. The veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in denial of the claim for increase. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the veteran and death of an immediate family member. Id. If the veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the veteran by the pertinent medical facility. Accordingly, the case is REMANDED for the following action: 1. The veteran and his representative should also be provided the notice required under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), to include the notice specified by the Court in Vazquez pertaining to increased rating claims, and notice that he should submit any pertinent evidence in his possession. The veteran should be asked to identify, with specificity, all sources of treatment, includes physical therapy, that is not currently of record (including any health care professional that provided physical therapy since April 2002). The notice should advise the veteran to submit medical or lay evidence demonstrating a worsening or increase in severity of the right knee disability and the effect that worsening has on his employment and daily life. Additionally, since the rating of knee disabilities may require the use of specific measurements and test results, the notice should include notice of 38 C.F.R. §§ 4.71a, Diagnostic Codes 5010, 5257, 5260, and 5261. 2. If the veteran responds, the RO or AMC should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses have been associated with the claims file, the RO or AMC should arrange for the veteran to undergo a VA examination at an appropriate VA facility by an appropriate health care provider. The entire claims file, to include a complete copy of this REMAND, must be made available to the health care professional designated to examine the veteran, and a report of the examination should include discussion of the veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all findings made available by the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should set forth all examination findings, along with the complete rationale for conclusions reached, in a printed (typewritten) report. 4. If the veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the veteran by the pertinent medical facility. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO or AMC should readjudicate the claim for a rating in excess of 10 percent for patella-femoral syndrome, right knee, with indication of osteoarthritis. If the veteran fails to report to the scheduled examination, the RO or AMC should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate, in adjudicating the claim for a higher rating. Otherwise, the RO should adjudicate the claim in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, the RO or AMC must furnish to the veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ David L. Wight 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).