Citation Nr: 1309325 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 09-21 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased rating for a medial meniscus tear, status post arthroscopy of the right knee (also referred to as right knee disorder), currently evaluated as 20 percent disabling. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from February 1991 to November 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied a disability evaluation greater than 10 percent for the service-connected right knee disorder. In an April 2009 rating decision, the RO increased the evaluation of the Veteran's service-connected right knee disorder to 20 percent disabling, effective December 6, 2007 (date of receipt of claim). The Veteran has not expressed satisfaction with this grant. Accordingly, the issue concerning the evaluation of the right knee disorder remains before the Board on appeal for the entire appeal period. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In April 2011 and October 2011, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. In a November 2012 letter, submitted after the October 2012 supplemental statement of the case was issued, the Veteran reported that he had an upcoming appointment with his private physician, D.M., MD at Norton Advanced Orthopedics in December 2012, and indicated that he would submit the records from that appointment immediately following the appointment. The claims folder does not contain records of treatment from Dr. D.M., including an appointment in December 2012. The procurement of potentially pertinent medical records referenced by the Veteran is required. As it appears that there may be available medical records that are not associated with the claims folder, a remand is required. See 38 C.F.R. § 3.159(c)(1). Furthermore, VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records and provide a release to obtain the records. If the claimant does not provide the release, VA is to request that the claimant obtain the records and provide them to VA. 38 C.F.R. § 3.159(e)(2) (2012). Here, after becoming aware of the private treatment records the Veteran reported in his November 2012 letter, VA has also not had an opportunity to follow the procedures outlined in 38 C.F.R. § 3.159(e)(2). Accordingly, the case is REMANDED for the following action: 1. An authorization should be obtained from the Veteran so that an effort can be made to obtain all records of treatment provided by Dr. Daniel Mauer at Norton Advanced Orthopedics for the Veteran's right knee disorder, including the records of any evaluation in December 2012. If the records are not available, the Veteran should be informed of this fact. If the Veteran fails to provide the requested authorization, request that the Veteran obtain the records and provide them to VA. 2. After giving the Veteran full opportunity to supplement the record and undertaking any other development deemed appropriate, including an additional contemporaneous medical examination of the Veteran's right knee if deemed necessary, the Veteran's claim should be readjudicated. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond thereto, and the case should thereafter be returned to the Board if warranted. 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). _________________________________________________ Michael J. Skaltsounis Acting 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).