Citation Nr: 1134853 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 06-07 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an evaluation in excess of 10 percent from December 23, 2004, to February 21, 2005, and as of April 1, 2005, for right knee chondromalacia patella. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which continued the noncompensable evaluation assigned to right knee chondromalacia patella. In a December 2005 rating decision, the RO granted a temporary total evaluation from February 22, 2005, to March 31, 2005, and continued the noncompensable evaluation prior to February 22, 2005, and as of April 1, 2005. In an August 2006 rating decision, the RO granted an increased rating of 10 percent prior to February 22, 2005, and as of April 1, 2005, and the Veteran seeks an evaluation in excess of 10 percent for those time periods. The issues of entitlement to service connection for a neurological disorder of the lower extremities and diverticulitis have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 The Veteran provided testimony before the undersigned at an August 2011 hearing. At the hearing, the Veteran stated he felt the last VA examination in September 2008 was inadequate. He also testified that this right knee had gotten worse since the September 2008 hearing. Therefore, the Board finds that a new VA examination is warranted so that VA has an accurate picture of the severity of the service-connected disability. Additionally, at the August 2011 hearing, the Veteran testified he was receiving treatment at VA for the right knee and with a private physician. The Board will request that these relevant records be obtained prior to the VA examination taking place. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all non-VA sources of treatment for his service-connected right knee disability. In particular, the Veteran should provide, or authorize the VA to obtain, any such pertinent private records, which are not already of record, including but not limited to any and all records from Abhindrajeet Singh Sandhu, M.D. (other than those dated July 2009 and September 2010, which the Veteran provided at the August 2011 Board hearing). 2. The RO/AMC should obtain the VA medical records pertaining to treatment for the right knee from January 2008 to the present. 3. Afford the Veteran a VA examination to determine the current severity of the right knee disability. The examiner should review the claims file. The examiner should note the presence and severity of any instability or subluxation in the right knee. The examiner should report the ranges of right knee flexion and extension in degrees. The examiner should specifically note the points, if any, in the range of motion where pain occurs. The examiner should determine whether the right knee disability is manifested by weakened movement, excess fatigability, or incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. 4. Thereafter, the RO/AMC should readjudicate the claim of entitlement to an evaluation in excess of 10 percent from December 23, 2004, to February 21, 2005, and as of April 1, 2005, for right knee chondromalacia patella and consider whether the Veteran is entitled to an extraschedular evaluation. If the benefit is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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 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. 2011). _________________________________________ WAYNE M. BRAEUER 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).