Citation Nr: 1310119 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-34 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable disability rating for left knee medial meniscal tear and grade III chondromalacia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from October 1976 to October 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran filed a notice of disagreement (NOD) with that determination in February 2009, and timely perfected his appeal in September 2009. The Veteran initially requested a Central Office hearing, which was scheduled for February 14, 2013. However, prior to the scheduled hearing date, the Veteran's representative submitted a February 2013 written statement withdrawing that hearing request. 38 U.S.C.A. § 20.704(d) (2012). 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 A review of the record discloses further development is necessary with respect to the Veteran's increased rating claim for his left knee disability. Initially, a remand is necessary in order to obtain outstanding VA medical records. The record reflects that the Veteran was receiving periodic treatment for his left knee disability through December 2008. It is unclear to the Board if the Veteran continued to seek medical treatment for his left knee disability after that time. Because it appears that there may be outstanding VA medical records dated after December 2008 that may contain information pertinent to his claim, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2009); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be offered the opportunity to submit any outstanding private treatment records in support of his claim. Additionally, the Veteran was last given a VA examination in June 2009 in order to establish the severity of his service-connected left knee disability. In the March 2013 Written Brief Presentation, the Veteran's representative noted that if the Board could not grant the Veteran's claim in full, a remand for a new examination was requested as the one of record was too old to adequately evaluate his disability. In this particular case, the June 2009 VA examination is too remote in time to address the current severity of the Veteran's service-connected left knee disability. See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his left knee disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain any of the Veteran's outstanding VA treatment records concerning the disability on appeal dated from December 2008 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2) After the foregoing, the Veteran should be scheduled for a VA examination to determine the current level of severity of his left knee disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary testing should be performed, to include x-rays. The examiner should write a comprehensive report discussing the current severity of the Veteran's left knee disability. All necessary testing should be provided, including range of motion tests on extension and flexion. The examiner should also be asked to determine whether the left knee exhibits weakened movement, excess fatigability, instability, or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202 (1995). Additionally, the examiner should specifically state if the Veteran has any recurrent subluxation or lateral instability of the left knee and, if so, whether those symptoms are slight, moderate, or severe. Furthermore, the examiner should state whether the Veteran has any ankylosis of the left knee. In addition, the examiner should state if the Veteran has dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Additionally, the examiner should state if the Veteran has symptomatic removal of semilunar cartilage. The examiner should also state whether the Veteran has impairment of the tibia and fibula and, if so, describe the impairment. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim. If the claim is denied, the AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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).