Citation Nr: 1302502 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 11-01 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for post-traumatic arthritis, status post left knee injury. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1977, and September 1977 to January 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2009 rating decision from the Appeals Management Center (AMC), which granted service connection for post-traumatic arthritis, status post left knee injury, and assigned an effective date of July 11, 2003. The Veteran filed a notice of disagreement (NOD) with this determination in March 2010, and timely perfected his appeal in December 2010. The Veteran was afforded a Video Conference Hearing before the undersigned Veterans Law Judge in December 2011. A written transcript of this hearing was prepared and incorporated into the evidence of record. 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 After a thorough review of the Veteran's VA claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to an increased rating for his left knee disability. The Veteran was last given a VA examination in August 2008 in order to establish the severity of his service-connected left knee condition. While the record contains a more recent February 2010 evaluation of the Veteran's left knee disability by the Buckingham Correctional Center, this evaluation does not address all of the necessary criteria that is needed in order to properly rate the Veteran's left knee condition. Additionally, at the December 2011 Video Conference Hearing, the Veteran testified that his left knee condition had worsened since his last examination, and detailed his current symptomatology, to include instability, pain, swelling, and the use of a cane and knee brace. In this particular case, the August 2008 VA examination and the February 2010 correctional center evaluation are too remote in time to address the current severity of the Veteran's service-connected left knee disability. See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his left knee condition. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). The Board notes that the Veteran is incarcerated at the Buckingham Correctional Center. The Veterans Benefits Administration Adjudication Manual M21-1MR, Part III, Subpart iv, Chapter 3.A.11.d. provides for a number of alternatives to be explored in trying to arrange for a VA examination for an incarcerated Veteran. They include having the Veteran transported to a VA facility, being examined at the prison facility by VA personnel, having an examination performed by prison medical officials at VA expense, or have the examination performed by fee-basis providers contracted by VA. See also Bolton v. Brown, 8 Vet. App. 185 (1995). The provision further provides that if a problem cannot be resolved at the local level, the Compensation and Pension (C&P) Service Program Review Staff should be contacted for assistance. The case must therefore be returned for a C&P examination to scheduled. If the Veteran is still incarcerated, an examination should be requested in accordance with M21-1MR, Part III, Subpart iv, Chapter 3, Section A. In addition, the claims file contains correctional center treatment records dating up to June 2011. As there may be outstanding records dated after June 2011 pertinent to the Veteran's claim, a request should also be made for all outstanding medical records from June 2011 to the present from the Buckingham Correctional Center. 38 C.F.R. § 3.159(c)(1) . Accordingly, the case is REMANDED for the following action: 1. The AMC should request pertinent medical records from the Veteran's incarceration, dating from June 2011 to the present, from Buckingham Correctional Center. The file contains a copy of the necessary authorization form completed by the Veteran. If the Veteran has been relocated to another penal facility a request should be made for medical records from that facility, and associate said with the claims file. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The AMC should schedule the Veteran for a new VA examination to determine the current level of severity of his service-connected left knee disability at his current correctional facility, either by VA personnel, prison medical officials at VA expense, or have the examination performed by fee-basis providers contracted by VA. All attempts made to arrange the examination should be clearly documented. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. The examiner should be provided with the applicable rating criteria. The examiner should write a comprehensive report discussing the current severity of the Veteran's left knee disability. All necessary testing should be provided, including range of motion tests on extension and flexion. Additionally, the examiner should specifically state if the Veteran has any recurrent subluxation or lateral instability of the left knee and, if so, whether those symptoms are slight, moderate, or severe. Further, the examiner should document if there is any ankylosis of the left knee. In addition, the examiner should note if the Veteran's left knee displays dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Lastly, the examiner should note if there is any impairment of the tibia or fibula. Additionally, the examiner should determine whether the left knee exhibits pain or painful motion, weakened movement, premature or excess fatigability, or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional functional loss, including in terms of what effect, if any, this has on the range of motion of this knee, including during times when these symptoms are most problematic ("flare ups") or during prolonged, repetitive, use of this knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). Furthermore, the examiner should also specifically comment on the effects of the Veteran's left knee disability on his occupational functioning and daily activities. 3. Thereafter, the AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran. After he has had an adequate opportunity to respond, the issue should be returned to the Board for further appellate review. 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 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). _________________________________________________ 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) (2012).