Citation Nr: 1304852 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-41 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating for residuals of a fractured right patella, to include traumatic arthritis, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1961 to October 1962. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which increased the disability rating for the service-connected residuals of a fractured right patella to 20 percent disabling, retroactively effective on September 23, 2008, the date of the Veteran's increased rating claim. The Veteran continued to appeal, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). The Veteran's Virtual VA records were also reviewed and considered in preparing this remand. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. The Veteran's last VA examination to assess the current severity of his service-connected residuals of a fractured right patella was in October 2008. VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). Here, in a December 2012 statement, the Veteran's representative stated that the Veteran's right knee continues to worsen, both in pain and in range of motion. In an October 2009 statement, the Veteran argued that he is currently unable to work and cannot stand for over 10 minutes. Thus, the evidence of record suggests an increase in the severity of his disability. An additional VA examination is therefore necessary to determine the current severity of the service-connected residuals of a fractured right patella. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995); see, as well, VAOPGCPREC 11-95 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for the VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to 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. Schedule the Veteran for an examination by a VA examiner with appropriate expertise to determine the current degree of severity of the Veteran's service-connected residuals of a fractured right patella, to include traumatic arthritis. The claims folder must be made available to and reviewed by the examiner. All indicated studies should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If instability of the right knee is shown, the examiner should indicate the degree of such instability in terms of whether it is slight, moderate, or severe as the case may be. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups) of the right knee and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. To the extent possible, the examiner should provide an opinion concerning the impact of the service-connected right knee disability on the Veteran's ability to work and his activities of daily living. The rationale for all opinions expressed should also be provided. 3. After the above action has been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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 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 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).