Citation Nr: 1309984 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-00 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased disability evaluation for residuals of a healed contusion injury of the right knee, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from July 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Buffalo, New York. The Veteran appeared at a Travel Board hearing before a Veterans Law Judge in October 2010. The Veterans Law Judge who held the hearing is no longer with the Board having retired after many years of dedicated service. The Veteran was informed of the retirement in a February 2013 letter and given the opportunity to appear at another hearing if so desired. Later that month, the Veteran responded that he did not wish to appear at another hearing and that he wanted his case considered based on the evidence of record. The Board notes that the Veteran has submitted paperwork, including correspondence from his Congressman dated in August 2012, which raises the issue of service connection for a psychiatric disorder. The Veteran appears to believe that the issue is currently before the Board. The Board notes that service connection for depression was denied in an April 2008 rating determination and that no correspondence which could be considered a notice of disagreement or evidence which would have allowed the claim to remain open was received within one year of the rating determination. Thus, the decision became final. As such, the issue is not before the Board and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND At the time of his October 2010 hearing, the Veteran testified that he had quite a bit of instability in his right knee. He indicated he had fallen at school on several occasions. The Veteran noted that he had last appeared for a VA examination in June 2009. Subsequent to the October 2010 Travel Board, the Board remanded this matter for further development, to include obtaining an opinion as to the whether the Veteran currently had arthritis in his right knee related to his service-connected right knee disorder and to perform an additional VA examination, if deemed necessary. The Board notes that the requested opinion was obtained with regard to the arthritis in July 2011. However, the Veteran was not afforded an additional VA examination, as the examination results from the prior examination were inserted following the requested opinion. The testimony of the Veteran at the time of his October 2010 hearing shows a possible increase with regard to instability. VA is obligated to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). Moreover, the Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board further notes that the last comprehensive VA examination is now more than three years old. Accordingly, the Board finds that a remand for another VA examination is required. 38 U.S.C.A. § 5103A(d) (West 2002). Based upon correspondence received from the Veteran's Congressman with regard to his claim for depression, it appears that the Veteran is still receiving treatment at the Syracuse VA Medical Center. The last records received from VA Medical Centers were obtained in January 2011. VA is deemed to have constructive knowledge of documents which are generated by VA agents or employees. Bell v. Derwinski, 2 Vet. App. 611,612-13 (1992). If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998); see also 38 C.F.R. § 3.159(c)(2). As this matter is in remand status, an attempt should be made to associate with the record all VA treatment records from the Rome/Syracuse VAMCs from January 2011 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record copies of all treatment records of the Veteran from the Rome/Syracuse VAMCs from January 2011 to the present. 2. The RO/AMC should schedule the Veteran for a VA examination to determine the current severity of the service-connected right knee disorder. The claims folder must be made available to the examiner for review and the examiner should note such review in the report. All indicated tests and studies should be performed and all findings must be reported in detail. After a review of the record on appeal and an examination of the claimant, the examiner should provide VA with the following information: a. The examiner should report the ranges of knee motion in degrees. The examiner should also report whether the right knee disability is manifested by weakened movement, excess fatigability, incoordination, pain, of flare ups. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. b. The examiner should also report whether there is lateral instability or recurrent subluxation, and if present, whether it is best characterized as slight, moderate, or severe. c. The examiner should also comment on the impact of the right knee disability on the Veteran's employment. Complete rationale with citation to relevant evidence found in the claims file must be provided for each opinion offered. 3. To help avoid future remand, VA must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the remaining claim on appeal. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for future review. 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. 2011). _________________________________________________ K. J. ALIBRANDO 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).