Citation Nr: 1300993 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-09 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE 1. Entitlement to an evaluation in excess of 10 percent for service connected residuals of left knee lateral meniscectomy. 2. Entitlement to an earlier effective date for service connection for right knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The rating decision confirmed and continued a rating of 10 percent disability evaluation for service connected residuals of left knee lateral meniscectomy. The Veteran failed to report for a scheduled hearing in August 2010. He presented good cause for failing to report to that hearing, and in July 2011, he testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). Subsequent to the hearing, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Right knee In a May 2012 rating decision, the RO granted entitlement to service connection for right knee condition, secondary to service connected residuals of left knee lateral meniscectomy, effective July 12, 2011. In a May 2012, the Veteran submitted a letter contending that the effective date of the compensation should be December 31, 2008. The Board accepts the Veteran's May 2012 statement as a Notice of Disagreement with the May 2012 rating decision. See 38 C.F.R. § 20.201 (2012). To date, however, the RO has not issued the Veteran a Statement of the Case (SOC) with respect to this claim. Under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Increased rating claim In several statements and at his hearing, the Veteran reported that his left knee disability had worsened since the most recent VA examination conducted in March 2009. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his left knee disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. The Board also observes that the Veteran receives both VA and private treatment for this condition. Records of his care at the North Little Rock VA Medical Center (VAMC) since October 2009 have not been associated with the claims file. Similarly, the most recent records of his care with private physician Dr. R. are dated May 2011. The Veteran may have received additional treatment in the intervening time. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Finally, in light of the Veteran report regarding the impact of his left knee disability on his ability to work, together with the evidence he has submitted in support of this contention, on remand, the RO must specifically consider whether to refer this matter to the Director of the VA Compensation and Pension Service, for consideration of an assignment of an extraschedular evaluation. 38 C.F.R. § 3.321. Accordingly, the case is REMANDED for the following actions: 1. Issue the Veteran an SOC with respect to his claim of entitlement to an earlier effective date for service-connected right knee condition, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. 2. Obtain any treatment records from the North Little Rock VAMC dated from October 2009 to the present that are relevant to left knee disability. Obtain any treatment records from Dr. R. dated from May 2011 to the present that are relevant to left knee disability. In light of the forthcoming changes to 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the claims file. The Veteran should be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of the nature, extent and severity of his left knee symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After all outstanding records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left knee disability. The claims file should be made available to and reviewed by the examiner, and the examiner must record the Veteran's complaints of pain and/or instability. All appropriate tests and studies should be conducted. The examiner should address the following: a) Indicate whether any of the following are present and to what degree: ankylosis (favorable or unfavorable); recurrent subluxation; lateral instability; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; symptomatic removal of semilunar cartilage; limitation of leg flexion; limitation of leg extension; impairment of tibia and fibula; and genu recurvatum. b) Discuss functional impairment of the knee, addressing weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. Any functional impairment should be expressed in degrees of limitation of motion, i.e., the extent of the Veteran's pain-free motion. 5. Then readjudicate the appeal. In doing so, the RO must specifically consider whether the Veteran's left knee claim should be referred for extraschedular consideration. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental SOC and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ STEVEN D. REISS 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) (2012).