Citation Nr: 1307303 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 08-19 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a higher rating for service-connected left knee disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from December 1987 to December 1991, March 1992 to March 1994, and from June 1994 to April 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran's claim was previously before the Board in December 2011, at which time the Board denied the claim for an increased rating for the left knee disability. Thereafter, the Veteran appealed the Board's denial of his left knee claim to the United States Court of Appeals for Veterans Claims (Court). In October 2012, the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Partial Remand (JMR). The JMR moved for the Court to vacate and remand the December 2011 Board decision with respect to the left knee disability claim, as the parties agreed that the Board failed to consider whether a separate 10 percent rating was warranted under Diagnostic Code 5259. In October 2012, the Court granted the JMR. 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 Reasons for Remand: To afford the Agency of Original Jurisdiction (AOJ) the opportunity to consider evidence relevant to the claim and to schedule the Veteran for a new VA examination A review of the Veteran's Virtual VA (electronic records) file indicates that the Veteran's service-connected left knee disability was examined during a July 2010 VA joints examination conducted in connection with an unrelated claim. However, this examination report was not included in the claims file at the time of the December 2011 Board decision and has not yet been considered by the RO in regards to the left knee claim currently on appeal. As the findings from the July 2010 examination have not yet been considered by the RO and the Veteran has not submitted a waiver of RO review, a remand is necessary. 38 C.F.R. § 19.37 (2012). Additionally, the Board finds that a new VA examination is warranted in this case. The Veteran was last afforded a VA examination with respect to the claim on appeal in March 2009. Although his left knee was also examined during the July 2010 VA joints examination, this examination report does not specifically address all objective and subjective manifestations of his left knee disability. As the most comprehensive assessment of the Veteran's left knee is nearly four years old and the evidence of record does not contemplate any recent treatment or the Veteran's recent contentions regarding the current severity of his symptomatology, a new examination is warranted to determine the severity of his service-connected left knee disability. See 38 U.S.C.A. § 5103A (West 2002); see generally Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (providing that an adequate VA medical examination must consider the Veteran's pertinent medical history). Ongoing medical records should also 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 the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and private medical records identified by the Veteran as relevant to the service-connected left knee disability. 2. After associating any pertinent, outstanding records, schedule the Veteran for an appropriate VA examination to assess the severity of his service-connected left knee disability. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. All necessary and appropriate tests should be performed, including range of motion tests using a goniometer. All subjective complaints and objective findings should be documented, and all diagnoses appropriate to the Veteran's symptoms should be noted. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, or incoordination. Additionally, the examiner should perform testing necessary to determine whether there are symptoms such as "locking", recurrent subluxation, and lateral instability and characterize any findings as mild, moderate, or severe. All symptoms should be reported in detail. The examiner should specifically state whether any symptoms result from the partial meniscectomy of the left knee. 3. If the Veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims files a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 4. After the above has been completed, the RO/AMC should review the claims files and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any examination report does not include adequate responses to the specific findings requested, it must be returned to the examiner for corrective action. 5. After taking any other development found to be necessary, the RO/AMC should readjudicate the claim. If the benefit is not granted, the Veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).