Citation Nr: 1133045 Decision Date: 09/07/11 Archive Date: 09/15/11 DOCKET NO. 08-29 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating in excess of 30 percent for post-operative residuals of a meniscectomy with synovectomy and arthritic changes of the right knee. 2. Entitlement to an increased disability rating in excess of 20 percent for chondromalacia of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from January 1974 to May 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which decreased the Veteran's disability ratings for his right and left knee disabilities to 10 percent disabling. Subsequently, in June 2009, the Board of Veterans' Appeals issued a decision restoring a 30 percent disability rating for the Veteran's right knee disability, and restoring a 20 percent disability rating for the Veteran's left knee disability. Additionally, the Board remanded claims of an increased disability rating for his right and left knee disabilities for further examination, which was completed. In February 2011, the Board again remanded the Veteran's claims for a Travel Board Hearing to be scheduled. The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in May 2011. A written transcript of this hearing was prepared and incorporated into the evidence of record. Regrettably, as outlined below, an additional remand is necessary before appellate review may proceed on the claim of an increased rating for a left knee disability. The issue of an increased rating for a left knee disability being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From March 12, 2007, to March 4, 2009, the Veteran's right knee has shown severe lateral instability, but at no point has the Veteran's right knee been ankylosed, nor has there been objective evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion, flexion limited to less than 60 degrees, extension limited to more than 5 degrees, or evidence of malunion of the tibia or fibula. 2. Since May 1, 2010, the Veteran's right knee disability is manifested by chronic residuals of a total knee replacement consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. From March 12, 2007, to March 4, 2009, the criteria for a disability rating in excess of 30 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5003, 5024, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2010). 2. Since May 1, 2010, the criteria for establishing entitlement to an increased disability evaluation of 60 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.45, 4.71a, Diagnostic Codes 5055, 5260-61 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the RO sent correspondence in April 2007 that informed the Veteran of what evidence was needed to establish the benefit sought, of what VA would do or had done, and of what evidence the Veteran should provide. In addition, the letter informed the Veteran of how effective dates are assigned. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining medical records and providing the Veteran with VA examinations in August 2007, October 2009, and May 2010. The Veteran has not indicated that he has received additional treatment for his service-connected right knee disability. The Board thus concludes that there are no additional treatment records outstanding with respect to that claim. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2010). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § Part 4 (2010). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C.A. § 5110(b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for increased rating, and continues to the present time. A. A Rating Higher than 30 percent from March 12, 2007, to March 4, 2009 During the relevant time period (i.e. generally from March 2007 to March 2009) the Veteran's right knee disability was rated 30 percent disabling under Diagnostic Codes (DC) 5010-5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2010). Diagnostic Code 5010 contemplates degenerative arthritis, while DC 5257 pertains to recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, DCs 5010, 5257. Diagnostic Code 5010 provides that arthritis due to trauma, substantiated by x-ray findings should be rated as arthritis, degenerative, under Diagnostic Code 5003. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint (like the knee, see 38 C.F.R. § 4.45) or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under these codes. 38 C.F.R. § 4.71a. That said, Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. The Board points out that separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). See VAOPGCPREC 09-04 (September 17, 2004). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Code 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a Veteran's knee disability is rated under Diagnostic Code 5257, the Veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion or objective findings or indicators of pain. See VAOPGCPREC 9-98. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The pertinent evidence of record reflects that the Veteran underwent VA outpatient treatment and private treatment, and was afforded a VA examinations in August 2007. Upon the filing of the Veteran's March 2007 increased rating claim, he was afforded an August 2007 VA orthopedic examination. His claims file was reviewed in conjunction with the examination, and his history of in-service injuries to his right knee was noted. The Veteran reported that he continued to experience bilateral knee pain, which affected his job as a mail handler. He reported that he had pain, weakness, stiffness, instability, swelling, heat, redness, fatigability, and a lack of endurance of his right knee, and also reported severe flare-ups of both knees with activity, episodes of which could last up to four to five days. Moreover, the Veteran reported that he used knee braces bilaterally. Upon examination, the examiner stated the Veteran's bilateral knee disabilities had a "severe" effect on his walking, and prevented all recreational activity. On objective evaluation of the right knee, the Veteran had flexion to 100 degrees, with pain after 80 degrees, and extension to 0 degrees. His gait was described as abnormal and slow. The examiner confirmed functional limitations on both standing and walking, and abnormal weight bearing was also noted. While the Veteran was positive for fatigue, weakness, and lack of endurance, the examiner did not indicate any additional limitation of motion resulted from such factors. Lachman's and McMurray's tests were both negative. A June 2007 VA X-ray of the right knee demonstrated stable osteoarthritis, with moderate joint effusion in the suprapatellar pouch. Moreover, no acute fractures or bony lesions were visible. The final impression was osteoarthritis and bursitis of the right knee. VA outpatient treatment records showed complaints of and treatment for a right knee disability. An October 2006 MRI of the right knee confirmed moderate joint effusion with a Baker's cyst, and severe osteoarthritis in the lateral compartment. Subsequent treatment records confirm recurrent right knee pain, partially relieved with aspiration of joint fluid. Based on a thorough review of all of the evidence of record, including a VA examination report and VA treatment records, the Board finds that the preponderance of the evidence is against an evaluation in excess of 30 percent for the Veteran's right knee disability. As stated above, under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. The knee is considered a major joint. See 38 C.F.R. § 4.45. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the present case, while the Veteran was shown to have arthritis of the knee, his limitation of motion of the right knee does not meet the noncompensable disability rating under Diagnostic Code 5260 and 5261. Accordingly, the Board finds that the current 30 percent rating for the Veteran's right knee disability appears to be based on recurrent subluxation or lateral instability, under Diagnostic Code 5257. However, the Veteran is already receiving the highest disability rating available under Diagnostic Code 5257. 38 C.F.R. § 4.71a. The Board has also considered whether the Veteran may be entitled to a separate disability rating for limitation of flexion and extension of the right knee at any time during the pendency of this claim. See VAOPGCPREC 9-04 (finding that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). However, the Veteran was found to have flexion to 100 degrees, 80 degrees with pain, during his August 2007 VA examination. Under Diagnostic Code 5260, flexion must be limited to 60 degrees before a disability evaluation may be assigned for limitation of flexion. Under Diagnostic Code 5261, extension must be limited to 5 degrees before a disability evaluation can be assigned for limitation of extension. As such, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a separate disability rating for limited flexion or limited extension of the right knee. As noted above, a Veteran can receive separate disability ratings for different problems or residuals of an injury as long as the separate ratings are not for the "same disability" or the "same manifestation" (i.e., the symptomatology for any one of the conditions is not duplicative of, or overlapping with, the symptomatology of the other conditions). See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Board has also considered whether the Veteran is entitled to a separate or increased rating for bilateral knee ankylosis, dislocation of the semilunar cartilage, symptomatic removal of the semilunar cartilage, impairment of the tibia or fibula, and genu recurvatum. However, because the evidence of record fails to demonstrate such symptomatology, the Veteran is not entitled to an increased or separate rating under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263, respectively. For the reasons and bases provided above, the preponderance of the evidence in this case is against the Veteran's claim for a rating in excess of 30 percent for a right knee disability from March 12, 2007, to March 4, 2009. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Accordingly, the Veteran's claim for an increased rating for a right knee disability is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). B. Rating Higher than 30 percent since May 1, 2010 On March 5, 2009, the Veteran underwent a total right replacement. Thereafter, a 100 percent evaluation was assigned from that date until May 1, 2010. Since May 1, 2010, the Veteran has been assigned a 30 percent disability rating under Diagnostic Code 5055 for his right knee disability. Under this code, a 100 percent evaluation is assigned for one year following the implantation of the prosthesis. A 60 percent evaluation is assigned for a prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. For a prosthetic replacement of the knee joint with intermediate degrees of residual weakness, pain, or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula). The maximum rating under these codes (Diagnostic Code 5256) is 60 percent. The minimum rating for a prosthetic replacement of the knee joint is 30 percent. On review of the evidence of record, a 60 percent rating is warranted under Diagnostic Code 5055 for the Veteran's right knee disability. In this regard, the evidence of record demonstrates chronic residuals of the right knee replacement consisting of severe painful motion and weakness. At the May 2011 Travel Board Hearing, the Veteran testified that he has had considerable issues with his prosthetic replacement. Specifically, the Veteran reported that he is unable to bend his knee because it swells up badly. Additionally, he stated that the knee replacement did not improve his condition, and it is at least as worse as it was before the surgery. Furthermore, the Veteran reported that he wears a brace on his knee and uses a cane. Moreover, the Veteran stated that he took medication for inflammation and pain for his right knee disability. The Court of Appeals for Veterans Claims has held that lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010) (noting that 38 U.S.C.A. 5103(a) requires the Secretary, for increased-rating claims, to notify the claimant that to substantiate such a claim the claimant should 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) (emphasis added); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (stating that 'as a layperson, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability.'). Here, the Board finds no reason to doubt the Veteran's credibility. Additionally, at the October 2009 VA examination, the Veteran reported that after knee replacement surgery, he continued to have pain and swelling. Furthermore, at the May 2010 VA examination, the Veteran reported that he had more pain in his right knee and it disturbed his sleep. He reported that his knee kept on giving out, resulting in him falling. The examiner noted that the symptoms of the Veteran's right knee disability included pain, weakness, decreased speed of the joint motion, pain with active motion, an inability to stand for more than a few minutes, and an inability to walk more than a few yards. Furthermore, the Veteran has reported having to always use a cane when walking. For all of these reasons, the Board finds the Veteran's symptomatology more closely approximates that contemplated by a 60 percent evaluation since May 1, 2010. The rating code does not permit a rating in excess of 60 percent. A higher rating is not warranted because such a rating would exceed the maximum 60 percent allowable under the 'amputation rule.' See 38 C.F.R. §§ 4.25, 4.68, 4.71a, Diagnostic Codes 5162 to 5164 (amputation at the middle or lower thirds of the thigh; amputation of the leg with defective stump, thigh amputation recommended; and amputation not improvable by prosthesis controlled by natural knee action all warrant a 60 percent evaluation). Moreover, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Furthermore, while Diagnostic Code 5055 allows a rating of 100 percent this is a temporary evaluation available for one year immediately following a prosthetic replacement of the knee joint. Moreover, there is also no diagnostic code pertaining to the knee or leg that allows ratings in excess of 60 percent. For all of these reasons, the Veteran is in receipt of the maximum rating available for his right knee disability. III. Extraschedular Consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2010). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b) (2010). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board acknowledges that the Veteran has reported that his right knee condition has significant effects on his occupation. However, the Veteran still maintains a full-time job as a mail handler. Additionally, the Veteran's right knee condition has not been shown to warrant frequent, or, indeed, any periods of hospitalization throughout the relevant appeals period. Therefore, the symptoms associated with the Veteran's right knee condition is not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disability. For this reason, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to an increased disability rating in excess of 30 percent for post-operative residuals of a meniscectomy with synovectomy and arthritic changes of the right knee, from March 12, 2007, to March 4, 2009, is denied. Entitlement to an increased disability rating of 60 percent for post-operative residuals of a meniscectomy with synovectomy and arthritic changes of the right knee, since May 1, 2010, is granted. REMAND A review of the record discloses further development is needed with respect to the Veteran's claim for an increased rating for his left knee condition. At the May 2011 Travel Board Hearing, the Veteran stated that his left knee disability had worsened. Specifically, the Veteran reported that he underwent a CT scan of his knee that showed the meniscus was completely shredded all the way around the knee, and that he had to return to the doctor on May 30th to schedule surgery. The October 2009 VA examination is too remote in time to address the current severity of the Veteran's left knee disability. See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a 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). Additionally, a remand is also necessary to obtain outstanding VA medical records. The record reflects that the Veteran was receiving periodic treatment for his left knee condition up through June 2009. However, at the May 2011 Travel Board Hearing, the Veteran reported that he was seeking treatment for his left knee condition and had a future doctors appointment to schedule surgery for his left knee condition. Because it appears that these outstanding VA medical records may contain information pertinent to his claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). The appellant should also be offered the opportunity to submit any private treatment records in support of his claim. Accordingly, the case is REMANDED to the AMC for the following action: 1) The AMC should obtain any of the Veteran's outstanding VA treatment records dated from June 2009 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the appellant's claims file. The appellant should also be offered the opportunity to submit any private treatment records in support of his claim. 2) After the foregoing, the Veteran should be scheduled for a new VA examination to determine the current level of severity of his left knee disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. The examiner should write a comprehensive report discussing the current severity of the Veteran's left knee disability. All necessary testing should be provided, including range of motion tests. Additionally, the examiner should specifically state if the Veteran has any recurrent subluxation or lateral instability of the left knee and, if so, whether those symptoms are slight, moderate, or severe. The examiner should also be asked to determine whether the left knee exhibits weakened movement, excess fatigability, instability, or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202 (1995). 3) Thereafter, the AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs