Citation Nr: 1300607 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-10 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to effective date prior to October 23, 2008 for the grant of a 20 percent rating for left knee surgical scars. 2. Whether new and material evidence has been received to reopen the claim for service connection for right knee disability, and if so, whether service connection is warranted. 3. Entitlement to an increased rating for left knee recurrent subluxation, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for left knee degenerative changes, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to October 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2007, July 2008, and October 2009 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The May 2007 decision continued a 10 percent rating for left knee degenerative changes, and denied service connection for right knee disability. The July 2008 decision granted a 10 percent rating for left knee surgical scar, effective from February 26, 2008, and continued the decisions made in May 2007. The July 2009 decision changed the effective date for the 10 percent rating for left knee surgical scar to May 2, 2006, the date of the Veteran's claim. The October 2009 decision changed the rating for the left leg scar disability to 20 percent, effective from October 23, 2008, the effective date of a change to 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). In the Veteran's December 2009 notice of disagreement and August 2010 VA Form 9, he limited his appeal concerning the scars to an effective date earlier than October 23, 2008 for the 20 percent rating. The Veteran presented testimony at an RO hearing in May 2010 and at a Board hearing in February 2012, and transcripts of the hearings are associated with his claims folder. The issues of higher ratings for the service-connected left knee arthritis and subluxation disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to October 23, 2008, the Veteran's tender left knee scars had an area of less than 39 square centimeters, were not widely separated, and did not limit the function of any part. 2. The new criteria for rating unstable or painful scars as 20 percent disabling based on the number that are unstable or painful are not effective prior to October 23, 2008. 3. The RO last denied service connection for right knee disability in May 2007, and notified the Veteran of its decision at that time. The Veteran did not appeal, nor was new and material evidence received within one year of notification of the determination. 4. Since the final May 2007 decision, certain evidence relating to unestablished facts necessary to substantiate the claim which is neither cumulative nor redundant of evidence previously considered has been received to reopen the right knee disability claim. 5. The evidence shows that right knee osteoarthritis was shown on X-rays within one year after the Veteran's service separation and was manifested by pain on motion and grating. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 23, 2008 for the grant of a 20 percent rating for left knee scars are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (2008, 2012). 2. The May 2007 RO decision denying service connection for right knee disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 3. The criteria to reopen the claim for service connection for right knee disability based on new and material evidence are met. 38 U.S.C.A § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. Resolving reasonable doubt in favor of the Veteran, he has right knee arthritis that may be presumed to have been incurred in his military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Left knee scar rating prior to October 23, 2008 Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the earlier effective date claim, as the October 2009 rating decision on appeal granted a higher (20%) disability rating and an effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Veteran has had ample opportunity to respond/supplement the record; it is not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). VA also has a duty to assist a claimant under the VCAA. Regarding the earlier effective date claim, generally the evidence pertinent in such claim consists of what is already of record and identification of when it was received. VA has obtained all relevant identified records including VA and private medical records dated prior to October 23, 2008. VA examined the Veteran in April 2008. The examination was adequate for rating purposes as it allows for proper application of all pertinent rating criteria. This examination was therefore adequate. VA afforded the Veteran the opportunity to give testimony to the RO in May 2010 and to the Board in July 2012. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA's duty to assist is met. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2012). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). The Veteran filed a claim for an increased rating for left knee disability on February 26, 2008. Historically, service connection was granted for a left knee scar in a January 2003 rating decision. An effective date of September 28, 2001, was assigned for the 0 percent rating. The July 2008 rating decision increased the rating for left knee surgical scar to 10 percent, effective from February 26, 2008. The July 2009 rating decision changed the effective date for the 10 percent rating for left knee surgical scar to May 2, 2006. The RO found that the February 26, 2008 claim for increase was received within one year of the May 24, 2007 notice of the decision on the increased rating claim filed on May 2, 2006. Accordingly, May 2, 2006 is the date of the Veteran's claim. The October 2009 decision changed the rating for the left leg scar disability to 20 percent, effective from October 23, 2008, the effective date of a change to 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). Currently, a 10 percent rating is assigned under 38 C.F.R. § 4.118 Diagnostic Code 7804 (2008) prior to October 23, 2008, and a 20 percent rating is assigned under that Diagnostic Code from that date. During the course of the Veteran's appeal, VA revised the rating criteria for evaluating scars, effective October 23, 2008. See 73 Fed. Reg. 54710 (October 23, 2008). Generally, where the rating assigned is on appeal and the rating criteria have been amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See 38 U.S.C.A. § 5110(g); Kuzma v. Principi, 341 F. 3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (April 10, 2000). Prior to October 23, 2008, scars of other than the head, face, or neck that are deep or that cause limited motion were rated 10 percent disabling if involving an area or areas exceeding 6 square inches (39 sq. cm.); 20 percent disabling if involving an area or areas exceeding 12 square inches (77 sq. cm.); 30 percent disabling if involving an area or areas exceeding 72 square inches (465 sq. cm.); and 40 percent disabling if involving an area or areas exceeding 144 square inches (929 sq.cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Note (2) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. Id. Note (a) provided that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Prior to October 23, 2008, superficial scars of other than the head, face or neck, which did not cause limited motion, and which covered an area or areas of 144 square inches (929 sq.cm.) or greater were assigned a 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008). A superficial scar was defined as one not associated with underlying soft tissue damage. Id. at Note (2). Prior to October 23, 2008, superficial unstable scars were assigned a 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). An unstable scar was defined as one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). Prior to October 23, 2008, superficial scars which were painful on examination were assigned a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Prior to October 23, 2008, the rater was directed to rate other scars on limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008). The regulations for rating skin disorders were changed, effective from October 23, 2008. 73 Fed. Reg. 54710 (Dept. 23, 2008). Effective October 23, 2008, deep nonlinear scars of other than the head, face, or neck are rated 10 percent disabling if involving an area or areas at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); 20 percent disabling if involving an area or areas at least 12 square inches (77 sq. cm.) but less than 72 square inches (456 sq. cm.); 30 percent disabling if involving an area or areas at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.); and 40 percent disabling if involving an area or areas of 144 square inches (929 sq.cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2012). A deep scar is one associated with underlying soft tissue damage. Id. at Note (1). Note (2) was added under Diagnostic Code 7801, providing that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2012). Effective October 23, 2008, Diagnostic Code 7803 was removed from the schedule and the criteria previously found under that code was incorporated into the revised Diagnostic Code 7804. Effective October 23, 2008, under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation; three or four scars that are unstable or painful warrant a 20 percent evaluation; five or more scars that are unstable or painful warrant a 30 percent evaluation. 38 C.F.R. § 4.118 (2012). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at note (2). Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under diagnostic code 7803, when applicable. Id. at Note (3). Effective October 23, 2008, Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118 (2012). Virtual VA (VA's electronic data storage system) contains no relevant evidence at this time. A May 18, 2006 VA medical record reports a healed left tibia scar. An April 2008 VA examination report indicates that the Veteran had a distal femur scar which was 0.2 x 2 cm with mild palpable fascial defect; a medial to patella scar which was 0.5 x 2 cm; a lateral to patella scar which was "02." x 2 cm; a horizontal scar of the proximal tibia which was 0.2 x 2.5 cm; a horizontal scar on the midshaft of the tibia which was 0.2 x 2.5 cm; and a vertical proximal tibia to midshaft tibia scar that was 0.5 x 21 cm. All scars were tender to touch, lighter than surrounding tissue, well healed without ulceration or evidence of infection, not raised, and not adhesed to surrounding tissue. Based on the law and evidence, the Board concludes that the criteria for an effective date prior to October 23, 2008 for a 20 percent rating for left knee surgical scars are not met. The evidence shows that the Veteran's left knee surgical scars had an area of less than 39 square centimeters, were not widely separated, and did not limit the function of any part. This can result in no more than a single 10 percent rating under Diagnostic Code 7804 for superficial painful scars prior to October 23, 2008. Note (a) to Diagnostic Code 7801 (2008) indicated that only widely separated scars could be rated separately. Application of 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012) prior to October 23, 2008, for rating unstable or painful scars as 20 percent disabling based on the number that are unstable or painful, is not permitted, as that is its effective date. 38 U.S.C.A. § 5110(g); Kuzma. Extraschedular In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms shown and described by the Veteran prior to October 23, 2008 fit squarely within the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Total Rating Based Upon Individual Unemployability (TDIU) When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A claim for a TDIU rating is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the Veteran has not asserted, and the evidence does not show that the Veteran's scars have caused unemployability. In fact, the April 2008 VA examination report shows that the Veteran is working full-time as a phlebotomist. Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). While the Board understands the Veteran's sentiment that the effective date for the 20 percent rating should be in May 2006 because his scars have not changed during the course of the claim, it was a change in the law which is effective no earlier than October 23, 2008 which permitted the 20 percent rating assigned from that date in this case. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Right knee reopening Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The RO denied service connection or denied reopening service connection for right knee disability in March 1995, August 1995, May 2001, January 2003, June 2003, and April 2005. After the March 1995 decision, a VA examination was received in May 1995, but it was not material, as it indicated that the Veteran had no right knee disability. After the August 1995 decision, additional evidence was not received within one year of the decision notification. After the May 2001 decision, the Veteran applied to reopen in September 2001, but he did not submit any new and material evidence within a year of the May 2001 decision notification. After the January 2003 decision, the Veteran submitted evidence of a postoperative right knee disability. This evidence was not new and material as he a postservice right knee disability was shown earlier in the record, in a 1994 VA examination report. After the June 2003 decision, the Veteran did not submit any new and material evidence within a year of the decision. The Veteran did not submit any evidence within a year after the RO's April 2005 notification of the denial of the claim. The RO last denied service connection for right knee disability in May 2007, and the Veteran was notified of that decision and of his appellate rights by a letter dated that month. He did not appeal or submit new and material evidence within one year of that decision. An August 2006 letter from a service physician which was received within a year after that decision did not contain any nexus evidence, and an April 2008 VA examination report concerning the Veteran's right knee contained only negative nexus evidence. Thus, the May 2007 rating decision is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The RO concluded at the time that the claim could not be reopened. At the time of the May 2007 decision, service connection was in effect for a left knee disability; a right knee disability had been shown; and there was some medical evidence that the Veteran's left knee disability had aggravated his right knee disability. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 2002). Applicable 38 C.F.R. § 3.156 provides that new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Certain evidence submitted since the last final right knee disability decision in May 2007 is sufficient to reopen the claim. There had been of record previously a July 2004 letter from M. Z. Pollak, M.D. indicating that in his opinion, an aggravation of the Veteran's right knee had been caused by the Veteran bearing undue weight on it during the period of time he experienced severe problems with his left knee. A July 2003 letter from Dr. Pollak has since been received. It notes that there was a question of whether the Veteran's right knee was aggravated as a result of him having to be off of his left knee following surgery and due to the fact that he injured his left knee at work in 1998 and had to protect it as a result of that. It continues that it was Dr. Pollak's opinion that the Veteran's disease was probably a little further ahead than it would have been had this not occurred and that he was certainly symptomatically aggravated. A letter received in June 2008 from D. I. Grossman, D.O. indicates that the Veteran had suffered a left knee injury in 1991 and that since then, X-rays had demonstrated progressive degenerative changes. He had surgery to the left knee with initial improvement. Since that time both the X-rays and his symptoms of pain and a feeling of giving out along with swelling had progressed. Dr. Grossman stated that the Veteran's right knee had demonstrated progressive degenerative changes on X-ray with pain and swelling since the left knee injury. He stated that this is common and consistent with compensation for the increased load created by the traumatic arthritis of the left knee. The problem developed and expressed itself after the left knee injury. Dr. Grossman had examined the Veteran repeatedly over the last several years and had confirmed these observations of worsening degeneration of the Veteran's knees. There is also of record an April 2009 VA examination report which does not support the claim. The Board finds the new letters from Drs. Pollak and Grossman to be material, as they lend credence to the previously submitted evidence indicating that the Veteran's service-connected left knee disability may have aggravated his right knee disability. The Board finds that evidence relating to unestablished facts which are necessary to substantiate the Veteran's claim and which is neither cumulative nor redundant has been received. In sum, new and material evidence has been received to reopen the disability claim. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Accordingly, the merits of the claim may be addressed. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Board does a de novo review of all evidence after reopening. 38 U.S.C.A. §§ 5108, 7104 (West 2002). Based on the entirety of the evidence which is of record at this point, the Board concludes that service connection is warranted for right knee osteoarthritis on a presumptive basis. Right knee osteoarthritis was diagnosed on VA examination based on X-ray findings in December 1994, within one year of service separation in October 1994. The 1994 examiner noted pain on motion and grating. While the examiner who examined the Veteran in May 1995 found that he had no right knee disability and that right knee X-rays did not show arthritis, right knee degenerative changes, which are evidence of osteoarthritis, were again shown by X-rays and diagnosis on VA examination in April 1997. The Veteran indicated in July 2000 that his knee constantly bothered him and that pain and discomfort had increased in severity. As a diagnosis of right knee osteoarthritis was made in December 1994, within six months from the Veteran's separation from service, although it was not shown in a subsequent May 1995 VA examination or X-rays, when affording the Veteran the benefit-of-the-doubt, the Board concludes that the Veteran's right knee arthritis was manifested to a degree of 10 percent or more within one year of his leaving service. Accordingly, the Board concludes that service connection for right knee arthritis on a presumptive basis is warranted. ORDER An effective date prior to October 23, 2008 for a 20 percent rating for left knee surgical scars is not warranted. New and material evidence has been received to reopen the claim of service connection for right knee disability. Furthermore, presumptive service connection is granted for right knee osteoarthritis. REMAND During the Veteran's hearing on appeal in May 2010, he indicated that he had received recent VA knee treatment, from both the Ann Arbor and the Detroit, Michigan VA Medical Centers. VA medical records are constructively of record and must be obtained for his left knee disability claims. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet.App. 611 (1992). The most recent VA medical record which is contained in the Veteran's claims folder or in Virtual VA (VA's electronic record system) is dated in January 2009. Accordingly, remand to obtain all VA medical records of treatment the Veteran has received since then is required. Moreover, since the Veteran's most recent VA examination was in June 2009 and it will likely be at least several months before the case is returned to the Board, another VA examination will be obtained on remand, to ensure that any changes in the severity of the Veteran's left knee disabilities are taken into account. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain and associate with the paper claims files or the Virtual VA file all VA medical records of left knee treatment which the Veteran has received since January 2009, including from the Detroit and Ann Arbor VA Medical Centers. 2. After that development is completed, schedule the Veteran for a VA examination for his service-connected left knee disabilities. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All necessary special studies or tests are to be accomplished. The examiner should clearly report all examination findings in accordance with VA rating criteria for knee disabilities applicable to this appeal. 3. After completion of the above, the RO should review the expanded record and determine whether higher ratings are warranted for the Veteran's service-connected left knee disabilities. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for appellate review. 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. 2011). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs