Citation Nr: 1305595 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-36 210A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for chondromalacia of the left knee. 2. Entitlement to a disability evaluation in excess of 10 percent for chondromalacia of the right knee. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served in the United States Air Force from January 1968 to September 1991. This appeal comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a December 2009 rating decision issued by the Winston-Salem, North Carolina, Regional Office (RO), of the Department of Veterans Affairs (VA). The December 2009 rating decision granted the appellant's request for an increased rating for the left knee but denied an increased rating for the right knee. Upon further review, the RO issued a corrective active rating action in September 2010 that assigned a 10 percent rating for the disability of the right knee. While both knee disabilities have been assigned 10 percent disability evaluations, the appellant has expressed disagreement with both ratings claiming that the evaluations should be higher than 10 percent. 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 As noted, the appellant has come before the Board asking that it award disability evaluations in excess of 10 percent for both of his knees. The appellant's submissions reflect treatment through a private orthopedist for pain in both knees. With respect to the left knee, he had surgery In July 2010. This strongly suggests a worsening of symptoms since his last VA examination in 2009. Accordingly, another examination is warranted to assess the present level of disability in each knee. Hence, to ensure that the VA has met its duty to assist the appellant in developing the facts pertinent to his claim, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), and to ensure full compliance with due process requirements, this case must be REMANDED to the AMC for the further development of evidence. 1. The AMC should provide to the appellant all notification action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000). Any notice given, or action taken thereafter, must comply with current, controlling legal guidance. 2. The AMC should contact the appellant and ask that he identify all sources of medical treatment received since January 2010 for all of the disabilities now on appeal, to include but not limited to records from any private physician if relevant, and to furnish signed authorizations for release to the VA of private medical records. Copies of the medical records from all sources should then be requested including those records that may be located at a VA facility or at a medical facility associated with Triangle Orthopedics Associates, P.A., of Durham, North Carolina. All records obtained should be added to the claims folder. If requests for any private or non-VA federal treatment records are not successful, the AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2012). 3. Only after all of the appellant's medical treatment records have been obtained and included in the claims folder, the AMC should arrange for the appellant to be examined by a VA medical doctor in order to determine the severity of the appellant's right and left knee disabilities. The claims folder and a copy of this remand are to be made available to the examiner to review prior to the review. The examiner must review the claims folder and state that this has been accomplished. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of each report. The examiner must specifically annotate in the record that he/she has reviewed all of the medical evidence in the claims folder. For each examination, the examiner must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the provided conclusions. If further testing or examination by other specialists is determined to be warranted in order to evaluate the conditions at issue, such testing or examination is to be accomplished prior to completion of the examination reports. A comprehensive clinical history should be obtained. The examination report should include discussions of the appellant's documented medical history, including the surgery on his left knee in July of 2010, and assertions with respect to each disability. It is requested that the examiner identify what symptoms, if any, the appellant currently manifests, or has manifested in the recent past, that are attributable to his service-connected right or left knee disability. The examiner should specifically comment on the manifestations and symptoms produced by the two separate conditions. Readings should be obtained concerning the appellant's range of motion, and any limitation of function of the parts affected by limitation of motion. The examiner should also be asked to include the normal ranges of affected body parts. Additionally, the examiner should be requested to determine whether the affected body parts exhibit weakened movement, excess fatigability, or incoordination, and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. [DeLuca v. Brown, 8 Vet. App. 202 (1995).] The examiner should also be asked to express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or on use. If so, an estimate of the additional loss of function during flare-up should be expressed in degrees. 4. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the deficient report must be returned for corrective action. If any other needed development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2012); see also Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the AMC should conduct any additional development deemed warranted and readjudicate the issues noted on the title page of this decision. If the benefits sought on appeal remain denied, the appellant and his accredited representative (if any) should be provided a Supplemental Statement of the Case (SSOC) regarding the issues now on appeal. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant is advised that failure to cooperate by reporting for examination may result in the denial of the claims. 38 C.F.R. § 3.655 (2012) and Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ ERIC S. LEBOFF 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).