Citation Nr: 1007290 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 04-16 362A ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10% for left knee chondromalacia with synovitis prior to April 2005. 2. Entitlement to a rating in excess of 20% for left knee chondromalacia with synovitis since April 2005. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The Veteran had active service from February 1976 to February 1979. This appeal to the Board of Veterans Appeals (Board) originally arose from a January 2004 rating action that denied a rating in excess of 10% for left knee chondromalacia with synovitis. By rating action of July 2005, the RO increased the rating for the left knee chondromalacia with synovitis to 20% from April 2005. The matters of ratings in excess of 10% prior to that date and 20% since that date remain for appellate consideration. In January 2007, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO. By decision of April 2007, the Board remanded this case to the RO for further development of the evidence and for due process development. By decision of March 2009, the Board denied ratings in excess of 10% for left knee chondromalacia with synovitis prior to April 2005, and 20% since that date. The Veteran appealed the denials to the U.S. Court of Appeals for Veterans Claims (Court). By September 2009 Order, the Court vacated the Board's March 2009 decision and remanded the matters to the Board for compliance with instructions contained in a September 2009 Joint Motion for Remand of the Appellant and the VA Secretary. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. The VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) (See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009)) includes, upon the submission of a substantially-complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, it defines the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the duties imposed by the VCAA, and the Court's Order, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has not been accomplished. Appellate review discloses that additional medical evidence pertaining to the claims on appeal has been developed since the issuance of the last Supplemental Statement of the Case (SSOC) in January 2009, namely, that the Veteran was afforded a new VA examination of his left knee in approximately January 2009. However, a report of that examination is not associated with the claims folder. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the Board finds that a copy of the January 2009 report of VA examination of the veteran's left knee, and copies of the complete records of all orthopedic surgery outpatient treatment and evaluation of the left knee at the Miami, Florida VA Medical Center (VAMC), and of all physical medicine and rehabilitation service (PM & RS) consultations at the Broward County VA outpatient clinic from September 2008 to the present time should be obtained and associated with the claims folder. The Board points out that, under 38 C.F.R. § 3.159(b), efforts to obtain Federal records should continue until either the records are received or notification is provided that further efforts to obtain such records would be futile. See 38 C.F.R. § 3.159(c)(1). The action identified herein is consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, this case is hereby REMANDED to the RO via the AMC for the following action: 1. The RO should obtain a copy of the January 2009 report of VA examination of the veteran's left knee, and copies of the complete records of all orthopedic surgery outpatient treatment and evaluation of the left knee at the Miami, Florida VAMC, and of all PM & RS consultations at the Broward County VA outpatient clinic from September 2008 to the present time. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims folder. 2. If any records sought are not obtained, the RO should notify the appellant and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future Remand, the RO must ensure that all requested development action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority, to include consideration of the propriety of (a) assigning separate ratings for the left knee disability prior to and since April 2005 under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, and 5261 (2009) consistent with VAOPGCPREC 9- 98 and 9-04, and (b) referral for extraschedular consideration under the provisions of 38 C.F.R. § 3.321(b)(1) (2009) and the Court's decision in Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). 5. Unless the benefits sought on appeal are granted to the veteran's satisfaction, the RO must furnish him and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and affords him the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran needs take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate timeframe. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2009).