Citation Nr: 1304479 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 07-11 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for recurrent patellar subluxation and osteoarthritis of the right knee, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for recurrent patellar subluxation and osteoarthritis of the left knee, currently evaluated as 10 percent disabling. 3. Entitlement to a temporary total rating following 1994 left knee surgery pursuant to the provisions of 38 C.F.R. § 4.30. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from January 1985 to January 1988. This matter came before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In furtherance of her appeal, the Veteran was afforded a February 2008 hearing before the RO, as well as four Board hearings, dated in September 2008, September 2011, May 2012, and October 2012. Transcripts of her hearings have been associated with the record. The Board's review of the record has included review of her Virtual VA e-file. This file contains duplicative information that is already in the file and that which is not pertinent to the current appeal. 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 Ratings The Veteran seeks increased ratings for her knee disabilities, which are currently assigned 10 percent evaluations. A VA examination was most recently carried out in January 2010. During hearings in September 2011, May 2102, and October 2012, the Veteran indicated that her knees were unstable and would give way without warning. During her October 2012 hearing, she testified that she had been receiving injections in her knees through VA. The Veteran's testimony regarding instability and her receipt of injections to her knees suggests worsening of her bilateral knee disability. The Board therefore concludes that a current examination is warranted. In addition, the evidence of record includes VA treatment records dated through September 2011; these records do not reflect that the Veteran has received any recent injections, but rather only reference a cortisone shot given in 2005. Therefore, updated VA treatment records should be obtained and added to the Veteran's claims file or Virtual VA e-file. Moreover, there is evidence of Worker's Compensation claims pertaining to injuries incurred in 2000 and 2006, with the Department of Labor regarding knee injuries. It is unclear whether there are additional records from the Department of Labor that might pertain to the claims. As there may be additional Federally held records relating to the knees that could provide a more complete history of the knee conditions, the Board finds that they should be sought. See 38 C.F.R. § 3.159(c)(2) (2012); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). Temporary Total Rating The Veteran seeks a temporary total rating based on surgical treatment of her service-connected left knee degenerative joint disease requiring a period of convalescence under 38 C.F.R. § 4.30. The Veteran underwent arthroscopy on her service-connected left knee on December 5, 1994, at a private facility. An order from her private physician, dated on January 3, 1995, indicates that she was allowed to return to light duty on January 4, 1995. She filed a claim for a total temporary rating that was received by VA on September 7, 2005. As an initial matter, the Board observes that the RO addressed this issue on the merits, without first making a determination on the threshold issue of whether the claim for a temporary total rating was timely, given the limits to retroactive awards as may be imposed by the criteria governing assignments of effective dates for claims for increased compensation. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Board finds that it is necessary to address this question, and has determined that it cannot do so in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, this issue must be remanded to allow the RO to consider it. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file or e-file, as appropriate, all VA treatment records for the period from September 2011 to the present. 2. Request that the Veteran provide or identify any additional non-VA treatment records that are relevant to her claims, copies of which then should be sought. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and his representative and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that she is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Contact the Department of Labor and request all records pertaining to Worker's Compensation claims filed by the Veteran with respect to either knee. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that she is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. Schedule the Veteran for a VA examination to determine the severity of her bilateral knee disabilities. The claims folder should be forwarded to the examiner for review. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history, the pertinent details of which should be included in the examination report. Following examination of the Veteran and review of the claims file, the examiner should identify all currently present manifestations referable to the Veteran's bilateral knees. The examiner should identify any objective evidence of pain and assess the extent of any pain. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability should be assessed in terms of additional degrees of limitation of motion, to include on use and during flare-ups. Specifically, the examiner should indicate the point at which pain or any other factor limits motion. The examiner should address the Veteran's reports of instability and giving way, and indicate whether there is objective evidence to support those complaints. If instability or subluxation is assessed, the examiner should indicate its severity in terms of slight, moderate, or severe. If any of the above inquiries cannot be addressed, the examiner should provide a complete explanation as to why they cannot be addressed. The complete rationale for all opinions expressed should be provided in the examination report, to include reference to pertinent evidence where appropriate. 5. Readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. With respect to the temporary total rating claim, the readjudication should reflect consideration of the provisions of 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400, and any limits they may impose on awarding increased compensation for a period more than one year prior to receipt of a claim. If any decision remains adverse to the Veteran, she and her representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto prior to returning the case to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2012). ____________________________ ___________________________ MICHAEL E. KILCOYNE ERIC S. LEBOFF Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans Appeals ______________________________________________ S. S. TOTH 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).