Citation Nr: 1107204 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 08-32 563 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 10 percent for the service-connected left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1989 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the RO. During the course of his appeal, the Veteran was afforded a hearing at the RO before the undersigned Veterans Law Judge in January 2011. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND By way of background, in an August 1995 rating decision, the RO granted service connection for left knee ligament and meniscus surgery and assigned a 10 percent evaluation, effective on May 24, 1994. The Veteran filed his current claim for an increased rating in February 2007. In April 2007, the Veteran was afforded a VA joints examination, the report of which reflects observations of no neoplasm, assistive aids needed for walking , constitutional symptoms of arthritis, incapacitating episodes of arthritis, joint deformity, weakness, episodes of dislocation or subluxation, episodes of locking, effusion, condition affecting motion of one or more joints, flare-ups of joint disease, inflammation, or evidence of abnormal weight bearing. There was noted to be a normal gait and range of motion without additional limitation of motion on repetitive use or joint line tenderness. There was noted to be negative McMurray's and Lachman's tests with no instability to varus/valgus testing, loss of bone or part of a bone, inflammatory arthritis, joint ankylosis, bumps consistent with Osgood-Schlatters disease, crepitation, mass behind knee, clicks or snaps, grinding, instability, patellar abnormality, meniscus abnormality, other tendon or bursa, or other knee abnormality. The examiner noted that the Veteran did undergo knee surgery while in service in 1993, for anterior cruciate ligament (ACL) reconstruction and meniscus repair/debridement. Further, the Veteran had functional limitations on standing and on walking, and complained of symptoms of giving way, instability, pain, and stiffness. He was diagnosed with left knee residuals status-post surgery. In February 2009, the Veteran underwent a VA joints examination, the report of which reflects findings of no history of hospitalization or surgery, history of trauma to the joints, history of neoplasm, deformity, instability, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, no effusions, affect on the motion of the joint, flare-ups of joint disease, evidence of abnormal weight bearing, loss of a bone or part of a bone, inflammatory arthritis, bumps consistent with Osgood-Schlatter's disease, mass behind the knee, clicks or snaps, instability, patellar or meniscus abnormality, abnormal tendons or bursae, or other knee abnormalities. He was noted to have a normal range of motion without objective evidence of pain following repetitive motion, additional limitations after three repetitions of range of motion, and joint ankylosis. The Veteran endorsed symptoms of giving way, pain, stiffness and weakness, and was noted to have antalgic gait, tenderness, abnormal motion, guarding of movement, crepitation, grinding and objective evidence of pain with active motion on the left side. The X-ray results reflected findings of moderate tricompartmental arthritis, worse in medial compartment. The examiner noted that the Veteran was currently employed fulltime as a truck driver. The Veteran was diagnosed with left knee degenerative joint disease, which was determined to be moderate in severity, with motion significantly limited. A June 2010 VA orthopedic follow-up note reflected complaints of persistent pain and swelling post-ACL reconstruction, doing fairly well but gradually having more pain and swelling, findings of left knee trace swelling above the medial joint line, grossly positive plantar flexion, Lachman's, and a diagnosis of degenerative joint disease of the left knee post ACL reconstruction. The physician determined that the Veteran's knee would gradually get worse, although he was not ready for surgery, and recommended transurethral thermo-ablation therapy as the occasion required, return visit 3 months. At his January 2011 hearing, the Veteran testified that the April 2007 examination was inadequate because the examiner did not physically examine or even touch him. He also reported that his left knee disability had worsened since the time of the February 2009 examination, due to symptoms such as severe pain and progressive deterioration of the left knee joint, requiring medication and possible surgical intervention. Hence, in light of the passage of time and the Veteran's contention that his left knee disability has worsened, the Board has no discretion and must remand this claim to afford the Veteran an opportunity to undergo a contemporaneous VA examination to assess the current nature, extent and severity of his left knee disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Prior to arranging for the Veteran to undergo further examination, the RO should obtain all outstanding pertinent records. In this regard, the record reveals that the Veteran receives treatment through the Orlando, Florida and Tampa, Florida VA Medical Centers (VAMCs). VA treatment records from that facility, dated to September 2010, have been associated with the record. Any additional records should be obtained and associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO should take all necessary steps in order to obtain copies of any outstanding records of left knee evaluation or treatment that the Veteran may have received from VA since September 2010. All such available records not previously procured should be obtained and associated with the claims folder. All available records and/or responses received should be associated with the claims file. 2. The RO schedule the Veteran for a VA examination to determine the current severity of the service-connected left knee disability. The examiner must review the claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner must specifically state whether, and to what extent, the Veteran had instability, subluxation, limitation of motion, and/or ankylosis of the left knee. The range of motion studies and x-ray studies must be conducted, and the examiner must provide information as to the presence and extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during any flare-ups of the left knee disability. The examiner should comment on the impact the service-connected left knee disability has on the Veteran's activities of daily living and on his employability. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 3. After completing all indicated development to the extent possible, the RO should readjudicate the claim for increase in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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. 2010). _________________________________________________ STEPHEN L. WILKINS 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) (2010).