Citation Nr: 1301912 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 10-33 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES Entitlement to a rating higher than 10 percent for hypertension. Entitlement to a rating higher than 10 percent for right knee osteoarthritis. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 1983. This appeal to the Board of Veterans' Appeals (Board) is from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran then testified at a formal Decision Review Officer hearing at the RO in February 2010 and April 2011. A transcript of the each hearing is associated with the claims file. The Veteran initially requested a Travel Board hearing at the RO before a Veterans Law Judge (VLJ) of the Board, but subsequently withdrew this request in writing in September 2011. 38 C.F.R. § 20.704(e) (2012). 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 on his part. REMAND Regrettably, a remand is necessary for further evidentiary development of the issues on appeal. I. VA Examination of Hypertension and Right Knee Osteoarthritis The Veteran's hypertension and right knee disabilities must be reexamined to reassess their severity. During the pendency of the appeal, the Veteran was afforded VA examinations in May 2009 and January 2010, pertinent to the increased rating claims for hypertension and right knee osteoarthritis. The last examination for his hypertension and right knee was provided approximately 3 1/2 years ago, initially raising the need for a more current examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). However, the Board observes that the passage of time alone does not trigger the need for a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) ("Although evidence submitted between the date of the regional office's decision and the Board's review of that decision could, in particular instances, conceivably require that a new medical examination be provided, the mere passage of time between those events does not.") In this case, however, the Board observes that the Veteran's contentions and other evidence appear to indicate a worsening of the service-connected hypertension and right knee osteoarthritis. Here, the Veteran and his representative recently testified at his April 2011 personal hearing that his hypertension and right knee disabilities have worsened since the last VA examination in January 2010. See, e.g., April 2011 Hearing Transcript, at 7, 31; VAOPGCPREC 11-95 (April 7, 1995) (explaining that while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). Concerning his hypertension, he contends that he has had to use an increased number and/or level of medication to control his hypertension, and that these have significant side effects, such as dehydration and high urinary frequency. April 2011 Hearing, at 7-8. He also asserts his hypertension produces swelling in his feet and ankles. Id., at 14. Concerning the Veteran's right knee osteoarthritis, he contends that he suffers increased symptoms, such as pain producing limited mobility when walking and climbing stairs. Id., at 15-18. Notably, the Veteran required emergency room treatment at the Milwaukee VA Medical Center (VAMC), dated in March 2011, for complaints of bilateral leg pain. The Veteran also testified to swelling symptoms. Id., at 16. He also raised indications of instability when standing and walking, requiring use of a cane and a knee brace, whereas only a cane was used at the time of the January 2010 VA examination. Id., at 23. He also testified to symptoms of numbness (see id., at 35); but the January 2010 examiner did not address numbness and other potential neurological manifestations of his right knee disability. The Board emphasizes that the current evidence of record does not adequately reveal the present state of the hypertension and right knee osteoarthritis. The Board finds, therefore, that a re-examination of these disabilities is necessary to ascertain the current severity of these disabilities. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). II. VA Treatment Records The Veteran's most recent treatment records pertinent to his hypertension and right knee disabilities are from the Milwaukee VA Medical Center (VAMC), dated through October 2011, and associated with the physical claims file. Further, the Virtual VA contains even more recent psychiatric treatment records from the Milwaukee VA Medical Center (VAMC), dated through February 2012. It is not clear whether there may also be more recent treatment records at the Milwaukee VAMC that are pertinent to the disabilities presently on appeal. On remand, records of any ongoing VA hypertension and right knee treatment that the Veteran may be receiving should be obtained, especially those at the Milwaukee VAMC, dated since October 2011. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). III. Social Security Administration (SSA) Disability Records The Board observes that a compact disc containing a digital version of Social Security Administration disability records was received on August 13, 2009, as noted in the RO's May 2010 statement of the case (SOC). However, on remand, the AMC should print-out these records and associate a physical/paper copy in the claims file. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service hypertension and right knee treatment that the Veteran has recently received. The Board is particularly interested in records of hypertension and right knee treatment that the Veteran may have received from the Milwaukee VA Medical Center (VAMC), dated since October 2011. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Associate with the Veteran's physical or Virtual VA claims file all of the Social Security Administration disability records, which are contained on the SSA compact disc, received on August 13, 2009. 3. After completing the requested development in paragraph #1, schedule a VA compensation examination to determine the current level of severity of the right knee osteoarthritis. The Veteran's claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. All pertinent manifestations associated with the service-connected right knee osteoarthritis should be annotated in the examination report. Specifically, the examiner should undertake range of motion studies of the Veteran's right knee and comment on the degree of disability due to functional losses such as pain and weakness. In addition, the examiner should elicit information as to the frequency, duration, and severity of any associated symptomatology, to include recurrent subluxation or lateral instability; dislocated semilunar cartilage with episodes of locking, pain, and effusion into the joint; symptomatic removal of semilunar cartilage; impairment of the tibia and fibula (nonunion or malunion); and genu recurvatum. The examiner should also note the presence of any ankylosis. The examiner should also express an opinion as to whether right knee pain could significantly limit functional ability during flare-ups or during periods of repeated use, noting, if feasible, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. The examiner should specifically state whether there is any instability/subluxation of the right knee. If so, the examiner should describe the severity of such instability/subluxation as "slight," "moderate," or "severe." Also, the examiner should discuss the extent of any loss of function in daily activities, including work and physical activity, due to the right knee osteoarthritis. A complete rationale should be given for all opinions and conclusions expressed. 4. After completing the requested development in paragraph #1, schedule a VA compensation examination to determine the current level of severity of the Veteran's hypertension. The Veteran's claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. In particular, the examiner must make specific findings consistent with the rating criteria for hypertension, listed under 38 C.F.R. § 4.104, DC 7101 (2012). Also, the examiner should discuss the extent of any loss of function in daily activities, including work and physical activity, due to the Veteran's hypertension. A complete rationale should be given for all opinions and conclusions expressed. 5. Ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 6. Then, readjudicate the issues of entitlement to ratings higher than 10 percent for hypertension and right knee osteoarthritis, respectively. If either benefit remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matters that 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 Court 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). ______________________________________________ BARBARA B. COPELAND 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).