Citation Nr: 1305252 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-41 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for a left patellar dislocation with patellar chondromalacia and early degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from June 1984 to May 1990, December 2005 to June 2006, and March 2007 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Cleveland, Ohio, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to an evaluation in excess of 10 percent for the left knee disability. The October 2009 decision must be treated as a reconsideration of an August 2008 rating decision which granted service connection for the left knee disability and assigned the initial 10 percent evaluation. Within the one year appellate period following that decision, the Veteran submitted new and material evidence regarding the assigned evaluation, along with a clear statement that he believed a higher evaluation was warranted. Specifically he submitted private medical records dated in December 2008 which included the physician's notation that he "does have sort of an unstable patella" and the Veteran's report that he was now wearing a knee brace. During the earlier VA examination in February 2008, no patellar instability was found and the Veteran reported that he did not use a brace. Such submissions are considered received in connection with the earlier claim. 38 C.F.R. § 3.156(b). The issue has been recharacterized accordingly. The Veteran testified at a May 2012 hearing held at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is of record. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure review of the totality of the evidence. 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 Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 30159. The Veteran reported at his May 2012 hearing that the pain in the left knee, and associated impairment, had increased since the most recent examination. In light of the assertions of worsening, an updated VA examination is required. Updated VA treatment records associated with the claims file following the hearing do not contain sufficient clinical findings to permit application of the Rating Schedule criteria. Additionally, there are multiple Diagnostic Codes which are potentially applicable to knee disabilities. The Veteran is currently rated under Code 5010, for painful motion which is not compensable under a joint-specific Code combined with radiographic evidence of arthritic changes. Increased impairment of the range of motion, particularly considering the impact of pain, incoordination, fatigability, weakness, or lack of endurance under 38 C.F.R. §§ 4.40, 4.40, 4.59, and ; DeLuca v. Brown, 8 Vet. App. 202 (1995), may result in a compensable evaluation under Code 5260 (limitation of flexion) and/or Code 5261 (limitation of extension). More importantly, however, there are indications in the record of potential impairments related to knee stability (Code 5257) or damaged menisci (Codes 5258 and 5259). One of the Veteran's main complaints is in fact that his knee "locks" repeatedly. On remand, the examiner must specifically comment on the presence of any impairment related to damage of the semilunar cartilage or ligamentous laxity, to ensure that all current manifestations of the left knee disability are recognized and addressed. Esteban v. Brown, 6 Vet. App. 259 (1994); VAOPGCPREC 23-97, 9-98, and 9-04; 38 C.F.R. § 4.14. Accordingly, the case is REMANDED for the following action: 1. Obtain complete VA treatment records from the medical center in Dayton, Ohio, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of April 2012 to the present. 2. Schedule the Veteran for a VA joints examination. The Veteran's claims folder should be forwarded to the examiner for review. The examiner must perform any necessary testing. The examiner must then identify all current diagnoses of the left knee and fully describe the functional impacts of each. The presence or absence of limitations of motion, ligamentous stability, or impaired/damaged menisci associated with the service-connected disability must be specifically addressed. The examiner must clearly state the degree of additional functional impairment attributable to pain, weakness, fatigue, incoordination, or lack of endurance, if any. If instability is found, the examiner should indicate whether it is slight, moderate or severe in degree. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the initial rating claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ 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).