Citation Nr: 1309461 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 08-21 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for a left knee disability based on limitation of extension. 2. Entitlement to a compensable disability rating for a left knee disability based on limitation of flexion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from February 2003 to June 2003. She also has a verified period of active duty for training (ACDUTRA) from April 1999 to August 1999. This matter initially came before the Board of Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Although she requested a hearing in connection with her claims, in March 2009, the Veteran withdrew her hearing request. In an October 2011 decision, the Board denied entitlement to higher ratings for a left knee disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in June 2012, the Court granted a Joint Motion for Remand (Joint Motion) filed by representatives for both parties, vacating the Board's October 2011 decision and remanding the appeal to the Board for further proceedings consistent with the Joint Motion. For reasons discussed below, this 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 In light of points raised in the Joint Motion, the Board finds that remand of these matters is warranted for additional evidentiary development. Review of the claims file reflects that the Veteran's service-connected left knee disability was previously examined by VA in September 2007 and May 2009. Both examination reports indicate that the Veteran reported experiencing flare ups associated with her left knee disability. In September 2007, she stated that flare ups occurred once a week and lasted approximately two days; during these flare ups she is unable to walk and ambulates by hopping on her right leg. During the May 2009 VA examination, the Veteran reported flare ups occurring once a week that lasted approximately one day. Again, she noted difficulty ambulating during flare ups; she also stated that she experienced increased pain with these episodes. The September 2007 and May 2009 VA examination reports reflect that left knee range of motion testing was completed. Pertinent to the reasons for the current remand, neither examiner discussed what additional impact, if any, pain had on the Veteran's functional range of motion during these flare ups. Under these circumstances, the Board finds a remand is necessary to obtain additional examination of the Veteran's left knee, to include an opinion regarding any range-of-motion loss specifically due to pain and any functional loss during flare ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). To ensure that the record before the examiner is complete, recent VA treatment records should be obtained from any appropriate facility, including the Columbia VA Medical Center (VAMC). See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession.). The Veteran should also be requested to provide additional information regarding any treatment received since October 2011. 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that she either provide outstanding treatment records pertaining to evaluation and/or treatment of her service-connected left knee disability since October 2011, or to provide VA with sufficient information to obtain these records. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Obtain all relevant treatment records from the Columbia VAMC for the period since July 15, 2008. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Following receipt of any outstanding treatment records, but whether or not records are received, arrange for the Veteran to undergo VA orthopedic examination for the purpose of determining the current severity of her service-connected left knee disability. Access to the claims file and Virtual VA must be made available to the examiner for review, if needed. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct a thorough orthopedic examination of the left knee and describe all associated symptomatology, to include any instability or subluxation. The examiner must document any limitation of motion, including any limitation of motion due to pain and any functional loss pertaining to the left knee, including due to pain or weakness, and to document all objective evidence of those symptoms. In addition, the examiner must provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. The examiner should also document, to the extent possible, the frequency and duration of exacerbations of symptoms. 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that the examiner documented his or her consideration of Virtual VA, as appropriate. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. The Veteran is hereby notified that it is her responsibility to report for the examination(s) and to cooperate in the development of her claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any aforementioned examination(s), documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC is to readjudicate the issues remaining on appeal. All applicable laws, regulations, and theories of entitlement should also be considered, as well as any evidence received since the June 2009 supplemental statement of the case. If any benefit sought on appeal remains denied, the appellant and her representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 D. LYON 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).