Citation Nr: 1301476 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 04-35 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected residuals of a left knee injury with traumatic arthritis. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active military service from January 1976 to September 1991. This appeal to the Board of Veterans' Appeals (Board) initially arose from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In September 2005, the Veteran appeared before the undersigned Veterans Law Judge sitting in Detroit, Michigan, and delivered sworn testimony pertaining to the issue on appeal. In January 2006, the Board remanded the issue for further evidentiary development. Subsequently, in a February 2009 decision, the Board denied the claim for an increased rating for residuals of a left knee injury with traumatic arthritis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2011 Memorandum Decision, the Court vacated the Board's February 2009 decision and remanded the case to the Board for further action consistent with the Court's decision. In December 2011, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. As noted in the January 2006 and December 2011 Board remands and February 2009 Board decision, the issues of entitlement to service connection for right knee and back disabilities, as secondary to service-connected left knee disability 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 Veteran if further action is required. REMAND In December 2011, the Board remanded the appeal so that any additional treatment records identified by the Veteran could be obtained and an additional VA examination scheduled. A VA examination was scheduled for January 2012 at the Detroit VA Medical Center (VAMC), and a letter asking the Veteran for treatment information was issued in February 2012. The Veteran neither attended the examination, nor responded to the letter. Multiple efforts were made by the RO to contact the Veteran, but all were unsuccessful due, at least in part, to VA not having current phone numbers for her. An address search was conducted, and no indication that the Veteran's address had changed was obtained, and no documents mailed to her were returned. In November 2012, a supplemental statement of the case was issued based on a review of additional VA treatment records dated through October 2012. Subsequently, a response was received from the Veteran's authorized representative indicating that they had no additional evidence to submit. Nevertheless, in the January 2013 Informal Hearing Presentation from the Veteran's representative, the representative reported that he had spoken to the Veteran that day and that she indicated she had had another medical appointment the day of the examination and so was unable to attend. The Veteran also related that she had attempted to contact the Detroit VAMC to reschedule the examination and had a new examination been scheduled she would have attended. Given these facts, the Board determines that there is good cause for scheduling another VA examination to assess the current nature and severity of his service-connected left knee disability. See 38 C.F.R. § 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a comprehensive VA joints examination to evaluate the severity of her service-connected residuals of a left knee injury with traumatic arthritis. All indicated tests should be performed, including all ranges of motion. The claims file, including a copy of this Remand must be made available to the examiner for review in conjunction with the examination. After a thorough review of the Veteran's records and a full clinical evaluation, the examiner should address the following: (a) With respect to the subjective complaints of pain, the examiner should be requested to specifically comment on whether pain is visibly manifested upon movement of the left knee joint, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected disability and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected disability, and any additional disability attributed to an intercurrent, work-related left knee sprain. (b) What is the range of motion of the Veteran's left knee in terms of flexion and extension in number of degrees? (c) Is there recurrent subluxation or lateral instability of the left knee? If there is, can such recurrent subluxation or lateral instability be described as slight, moderate, or severe? (d) Does the Veteran's left knee exhibit weakened movement, excess fatigability, incoordination, or pain on use? To the extent possible, these determinations (and all must be addressed in the body of the examination report) should be expressed in terms of the degree of additional range of motion loss due to these symptoms? (e) Does pain significantly limit functional ability during flare-ups or when the left knee is used repeatedly over a period of time (these determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups)? (f) What effect, if any, does the service-connected left knee disability have on the Veteran's ability to work, excepting any disability attributed to the work-related sprain of the left knee? If any of the requested information cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative, including noting whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the information was based on the limits of medical knowledge. The examiner must provide a clear rationale for all conclusions reached and all conclusions should be supported by appropriate evidence of record. 2. Notify the Veteran that it is her responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of her claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 3. Upon completion of the above, the RO must review the examination report to ensure that it is fully responsive to all of the factors delineated above as required by Stegall v. West, 11 Vet. App. 268 (1998). If any portion of the examination is inadequate, it should be returned to the examiner for further comment and completion before the claim is readjudicated. 4. After completing the above actions, the RO should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs. 5. Thereafter, the RO must readjudicate the issue on appeal with consideration of all evidence received since the most recent supplemental statement of the case. Particular consideration is to be given to the provisions of 38 C.F.R. §§ 4.40, 4.45, as set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995); the application of separate ratings without resorting to pyramiding (38 C.F.R. § 4.14); and entitlement to an extra-schedular rating pursuant to38 C.F.R. § 3.321(b)(1). If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO should issue a supplemental statement of the case and provide the Veteran and her representative with an appropriate opportunity to respond. 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. 2012). _________________________________________________ U. R. POWELL 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).