Citation Nr: 1306828 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-14 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for chondromalacia patella right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active military service from September 1975 to February 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned at a September 2012 Travel Board hearing held in San Antonio, Texas. A transcript of the hearing is of record. 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 After review of the record, the Board finds that a remand for further development is warranted with respect to the issue of entitlement to an initial rating in excess of 10 percent for chondromalacia patella right knee. The Board notes that the Veteran stated at his September 2012 hearing that it had been recommended that he have a total knee replacement for his right knee. The Veteran further stated that he is currently receiving treatment from the VA through the South Texas Veterans Health Care System, including the Frank M. Tejeda VA Outpatient Clinic, and the Audie L. Murphy Veterans Hospital, located in and around San Antonio, Texas. However, records from March 2009 to the present are not associated with the claims file and therefore should be added to the Veteran's claims file. The Board notes that VA has a duty to obtain all outstanding identified VA treatment records as such records are constructively in the possession of VA adjudicators during the consideration of a claim, see Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the Board finds that the Veteran's appeal must be remanded to obtain these treatment records. Additionally, the Board notes, as stated above, that the Veteran is service-connected for chondromalacia patella right knee, currently evaluated as 10 percent disabling. In the July 2007 rating decision, the RO relied on a May 2007 VA examination in assigning the Veteran's 10 percent evaluation. However, at the September 2012 Board hearing, the Veteran asserted that his condition has increased in severity since the May 2007 VA examination. Specifically, the Veteran indicated at his January 2012 Travel Board hearing that his right knee disability had increased in severity and indeed it had been recommended that he have a total knee replacement. The Board notes that VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected chondromalacia patella right knee. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, a new VA examination is warranted. See VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination); Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA treatment records from the South Texas Veterans Health Care System, including the Frank M. Tejeda VA Outpatient Clinic, and the Audie L. Murphy Veterans Hospital, located in and around San Antonio, Texas, for the period from March 2009 to the present. A response, negative or positive, should be associated with the claims file. Requests must continue until it is determined that the records sought do not exist or that further efforts to obtain these records would be futile. 2. Schedule the Veteran for a VA examination to determine the current degree of severity of his service-connected residuals of chondromalacia patella right knee. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should elicit a complete history from the Veteran. All pertinent symptomatology, to include range of motion, should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint should be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A complete rationale should be given for all opinions and conclusions expressed. 3. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ JOHN Z. JONES 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).