Citation Nr: 1007405 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 07-19 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee (previously diagnosed as internal derangement with limitation of motion). 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee (previously diagnosed as internal derangement with limitation of motion). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Russell P. Veldenz, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1997 to August 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston Texas. In October 2009, the Veteran appeared via video at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the 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 In his notice of disagreement dated in March 2006, the Veteran stated he used pain medication that had been prescribed by the Rove Medical Clinic, a private pain management clinic located in Orange, Texas. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). This duty includes obtaining pertinent medical records identified by the veteran. 38 U.S.C.A. § 5103A(b) (West 2002 & Supp. 2009). As the Rove Medical Clinic treatment records of the Veteran are potentially relevant to his claim, they must be obtained prior to any adjudication by the Board. However, the Veteran is put on notice that because such records are private, and VA may not obtain them without his expressed written consent, his cooperation is required for this development to be afforded him. In the alternative, the Veteran retains the right to obtain such evidence and submit it to VA directly. In a statement dated in December 2007, the Veteran made reference to a MRI for his right knee and that he will send copies to VA from his primary care physician. He did not identify the physician. The file does contain a copy of a January 2008 MRI from Radiology Associates of San Antonio, P.A. and January 2008 records from Dr. Wagdy S. Rizk of the Beaumont Bone & Joint Institute, P.A. Dr. Rizk also wrote a letter to "Dr. Cummings," but no further identification is noted. It is unclear to the Board if Dr. Rizk, a physician from the Rove Medical Clinic, Dr. Cummings, or some other physician is the primary care physician that the Veteran referred to in his December 2007 statement. It is also unclear whether the Veteran provided VA with all of the records from Dr. Rizk and Radiology Associates of San Antonio, P.A. A complete set of those records would appear to be pertinent to the current appeal. Thus, a remand is required for VA to directly obtain the records from Dr. Rizk, Dr. Cummings, and Radiology Associates of San Antonio, P.A. At his hearing, the Veteran submitted a written consent authorizing the Sabine Neches Private Clinic in Evadale, Texas to release copies of treatment records from 2003 to the present to VA. It appears, however, that no attempt has been made to obtain the records of the Sabine Neches Private Clinic because the original written consent is still in the file and no records of the clinic are associated with the file. Those records would appear to be pertinent to the current appeal and a remand is required to obtain those treatment records. The Veteran has undergone two VA examinations in November 2005 and July 2007. Dr. Rizk's records indicate a right torn medial meniscus was diagnosed in January 2008, but there is no medical evidence explaining the significance of this diagnosis, including whether it was caused by, aggravated, otherwise related to the degenerative joint disease of the right knee or service. Also, the Veteran testified that his disability has gotten worse since the last examination in July 2007. In addition, the Board notes that although the examiner noted the Veteran experienced pain and weakness during range of motion testing, the examiner did not record the point at which pain begins and ends. Stated another way, the examiner did not express the Veteran's pain in terms of degrees of additional limitation of flexion or extension. Where the record does not adequately reveal the current state of a claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). VA is also obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). VA's duty to assist includes providing a medical examination and/or obtaining a medical opinion when such an examination becomes necessary to substantiate the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009). Thus, a new VA examination is required to determine the current impairment resulting from the Veteran's service- connected disability of each knee. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request he identify and provide the complete names and address of any private care providers, as well as the approximate dates of treatment for both his right and left knees, to include the Rove Medical Clinic, Radiology Associates of San Antonio, P.A., Dr. Cummings, Dr. Wagdy S. Rizk of the Beaumont Bone & Joint Institute, P.A., and the Sabine Neches Private Clinic. Inform the Veteran of the need to complete VA Form 21-4142 for any private medical care providers who may possess additional records. After securing any necessary authorizations or medical releases, request and associate with the claims file any additional medical treatment reports from all sources identified whose records have not previously been secured. Also, notify the Veteran that he may obtain the relevant evidence himself and send it to VA. If any medical treatment records indicated by the Veteran are not available, or he fails to authorize VA to obtain them on his behalf, that fact should be noted for the claims file. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA orthopedic examination to determine his current degree of disability resulting from his degenerative joint disease of the left knee and degenerative joint disease of the right knee. The claims file and a copy of this remand must be made available to the examiner and the examiner should indicate in his/her report that these records were reviewed. All clinical observations and findings should be reported in detail. Any indicated tests, including X-rays if indicated, should be accomplished. The examiner must also report the presence or absence of the regulatory criteria, to include the following: The examiner should indicate complete range of motion in degrees for each knee and whether the Veteran experiences additional functional loss as a result of painful joint motion, instability, weakness, or lack of endurance of either knee joint. To the extent possible, the functional impairment due to pain, incoordination, weakened movement, and excess fatigability should be assessed in terms of additional degrees of limitation of motion. Stated differently, the examiner should note at what point does pain or any other factor limit motion. The examiner should also indicate, if appropriate, the presence and severity of any neurological impairment or any lateral instability, laxity, or recurrent subluxation of either the left or the right knee. Any other impairment related to the Veteran's knee disabilities should also be noted for the record. The clinical findings and reasons upon which any opinion is based should be clearly set forth. The examiner is also asked to describe: a). the effects of the knee disability on the Veteran's occupational functioning and daily activities; b). the clinical significance of the findings of the MRI in January 2008, demonstrating a tear of the medial meniscus. 3. After the requested development has been completed, undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, re-adjudicate the Veteran's pending claims of entitlement to increased ratings for a left and right knee disability, in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and give them an opportunity to respond before returning the case to the Board. 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. 2009). _________________________________________________ THOMAS D. JONES 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) (2009).