Citation Nr: 1309896 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-11 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for degenerative joint disease of the left knee associated with left knee instability, status postoperative, with chondromalacia, currently rated as 30 percent disabling since January 1, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to April 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that continued a 30 percent rating for the Veteran's left knee disability. 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 Additional development is needed prior to further disposition of the claim. The Veteran was last afforded a VA examination for his left knee disability in September 2008, over 4 years ago. Additionally, the September 2008 VA examination did not contain an evaluation of any scars that the Veteran may have as part of the residuals of his left total knee replacement. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Because there may have been a change in the Veteran's condition, the Board finds that a new joints and scar examination is needed to fully and fairly evaluate the Veteran's claim for increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA joints and scar examination to determine the current severity of his service-connected left knee disability. The examiner must review the claims folder in conjunction with the examination. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe all symptomatology, to include range of motion of the left knee (specifying at what degree in motion pain begins). The examiner should also describe any functional loss pertaining to the service-connected left knee disability due to pain or weakness, and to document all objective evidence of those symptoms. In addition, the examiner should 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 determine whether the Veteran has ankylosis of the knee; instability or subluxation of the knee; nonunion of the tibia and fibula with loose motion and requiring a knee brace; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in the left knee. Further, with respect to any scar residuals of the Veteran's left knee total replacement, the examiner should determine whether the scar is superficial or deep, unstable, painful on examination, or causes limited motion or function. The examiner should also measure the area or areas of the scar. The medical rationale for all opinions expressed should be provided. 2. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then 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). _________________________________________________ WAYNE M. BRAEUER 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).