Citation Nr: 1307642 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 04-18 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a disability rating in excess of 10 percent for left knee arthritis. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active naval service from May 1979 to April 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This case was previously before the Board, most recently in August 2010, at which time the Board denied the issue currently on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2011 memorandum decision, the Court vacated the Board's decision with respect to the issue currently on appeal and remanded the case to the Board for action consistent with the memorandum decision. This case is REMANDED to the RO. VA will notify the appellant if additional action is required on his part. REMAND The Board finds that additional development is required before the Veteran's claim on appeal is decided. The Veteran was afforded a VA examination in January 2010 to determine the current level of severity of all impairment resulting from his service-connected left knee arthritis. At that time, the Veteran reported that he experienced painful flare-ups of his disability that caused further functional impairment. However, the VA examiner reported that the extent of the Veteran's functional impairment during a flare-up could not be determined without resorting to speculation. A review of the examination report shows that the Veteran reported swelling in his left knee during a flare-up and that his work and daily activities were affected. However, the examiner did not elicit further information from the Veteran regarding his symptoms during flare-ups and the nature and extent to which his work and daily activities were affected by his flare-ups. Additionally, the examiner reported that the Veteran had moderate to severe impairment in his daily and occupational activities as a result of his left knee arthritis, but failed to provide a detailed report of such impairment. The Board finds that this information is necessary in order to determine the current level of severity of all impairment resulting from the Veteran's service-connected left knee arthritis. Therefore, the Veteran should be afforded a VA examination in order to determine the current level of impairment resulting from his service-connected left knee arthritis. Additionally, current treatment records should be obtained before a decision is rendered with regard to this issue. Accordingly, the case is REMANDED to the RO for the following action: 1. Undertake appropriate development to obtain any outstanding, pertinent medical records. Any additional treatment records identified by the Veteran should be obtained and associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his attorney are to be notified of any unsuccessful efforts, in order to allow them the opportunity to obtain and submit those records for VA review. 2. Then, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected left knee arthritis. The claims file, to include any information in Virtual VA that is not contained in the paper claims file, must be made available to and reviewed by the examiner. Any indicated studies should be performed. A complete, detailed history should be obtained from the Veteran and recorded in the examination report, along with his current complaints. Range of motion of the knee should be recorded, with a notation of the point (if any) at which motion becomes painful. The examiner should provide an opinion as to the level of functional impairment resulting from the Veteran's service-connected left knee arthritis on use and during a flare-up. The Board notes that this information may be elicited from the Veteran. Pain on use, pain with flare-ups, or other functional loss should be quantified by equating the functional loss(es) to limitation of motion expressed in degrees beyond that shown clinically. If the examiner is unable to opine as to the level of functional impairment the Veteran experiences during a flare-up, the examiner should so state and provide the reasons why this information cannot be provided. If the Veteran's left knee arthritis is found to interfere with his routine daily and occupational activities, the examiner should state the extent of the impairment and specifics regarding the type of impairment experienced by the Veteran, quantifying the effects of flare-ups. The rationale for any opinions expressed must be provided. 3. The RO should confirm that the examination report and any opinions provided comport with this remand and undertake any other development it determines to be warranted. 4. Then, the RO should readjudicate the Veteran's claim on appeal, to include consideration of a higher evaluation on an extraschedular basis. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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). _________________________________________________ BARBARA B. COPELAND 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).