Citation Nr: 1306748 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 05-02 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 10 percent for degenerative changes of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from March 1990 to November 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the testimony has been associated with the claims file. In August 2009, the Board remanded the appeal for further development. In an April 2011 decision, the Board denied a disability rating in excess of 10 percent for degenerative changes of the right knee. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 memorandum decision, the Court reversed the Board's finding of compliance with the August 2009 remand instructions and remanded the appeal for a new VA examination. 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 In the August 2009 remand, the Board had in part requested a VA examination to determine the nature and severity of the Veteran's right knee disability. Of note, the examiner had been asked to express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses the knee joint repeatedly over a period of time. After examining the Veteran, who was not experiencing a flare-up at that time, the examiner concluded that he could not offer an opinion regarding flare-ups without resorting to speculation as there was no objective data to support a more definitive finding. In the August 2012 memorandum decision, the Court reversed the Board's finding that the agency of original jurisdiction had complied with all of the August 2009 remand instructions. The Court observed that it was not clear whether the examiner had considered all procurable and assembled data. In this regard, the Court cited to evidence of limitations caused by flare-ups: * an August 2003 VA examination report noting complaints of intermittent flare-ups with stiffness; * an April 2005 VA examination report noting that the Veteran's gait became antalgic after less than three minutes on a treadmill; * an April 2007 VA examination report noting complaints of weekly flare-ups lasting two to three days that the Veteran worked through; and * an October 2009 VA examination report noting complaints of flare-ups with over-activity or weather changes lasting one to three days three to four times in the past six months that slowed down the Veteran tremendously at work. Given the above, the Veteran should be afforded a new VA examination to obtain an opinion on flare-ups that specifically considers the above evidence. Prior to the examination, any outstanding records of treatment should be obtained. The Veteran receives treatment from the Daytona Beach VA Outpatient Clinic, and the record contains treatment notes dated through July 2009. Thus, any treatment notes since that time should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding records of right knee treatment that the Veteran may have received at the Daytona Beach VA Outpatient Clinic since July 2009. All such available reports should be associated with the Veteran's claims folder. If any such records are not available, that fact should be annotated in the claims folder. 2. Thereafter, accord the Veteran a VA examination to determine the nature and extent of the service-connected degenerative changes of his right knee. The claims folder must be made available to the examiner in conjunction with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. Any testing deemed necessary, including X-rays, should be performed. All pertinent pathology should be noted. The examiner should discuss any limitation of motion and instability found to be associated with the service-connected disability. The examiner should also discuss whether the right knee exhibits weakened movement, excess fatigability, or incoordination that is attributable to the service-connected disability. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. In addition, the examiner should express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses the joint repeatedly over a period of time. In addressing these matters, the examiner should consider, and discuss, the complaints of flare-ups noted in the August 2003, April 2005, April 2007, and October 2009 VA examination reports and the antalgic gait noted in the April 2005 VA examination report. A complete rationale for all opinions expressed must be provided. 3. Then, readjudicate the issue of entitlement to a disability rating in excess of 10 percent for degenerative changes of the right knee. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO 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 Court. 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).