Citation Nr: 1310130 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-31 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome, right knee prior to March 25, 2009, from May 1, 2009 to October 4, 2010, and from December 1, 2010 onward. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from October 1992 to January 1998 and from October 2000 to August 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared and testified at a hearing held before the undersigned Veterans Law Judge in June 2012 at the RO. A copy of the transcript of this hearing has been associated with the Veteran's physical VA claims folder and has been reviewed. While the appeal was pending, the Veteran underwent right knee surgery on March 25, 2009. In a May 2009 determination, he was subsequently granted a temporary total rating (100 percent) from March 25, 2009 to April 30, 2009 for postoperative convalescence following the surgery 38 C.F.R. § 4.30 (2012). The 10 percent disability rating for the right knee was continued thereafter. On October 5, 2010, the Veteran underwent a second right knee surgery. In a January 2011 determination, he was subsequently granted a temporary 100 percent rating from October 5, 2010 to November 30, 2010. The 10 percent disability rating for the right knee was continued thereafter. 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 The Veteran contends that his service-connected patellofemoral syndrome, right knee is more disabling than the current 10 percent disability rating reflects. During his June 2012 hearing, the Veteran testified that his right knee symptomatology had increased in severity since the most recent VA examination in December 2010. He testified that he had locking and instability of the right knee that requires him to wear a knee brace. He also testified that he had constant right knee pain and increased swelling. Unfortunately since the December 2010 VA examination there is very little evidence in the claims file which adequately describes the nature and extent of the Veteran's right knee disability. That notwithstanding, the Board also notes that the Veteran is competent to provide evidence as to the severity of his symptoms. See 38 C.F.R. § 3.159(a)(2) (2012). To that end, while the 2010 VA examination is not necessarily too old to adequately evaluate his right knee disability, since there may have been significant changes disability since the previous examination, and to ensure that the Veteran's own complaints are sufficiently considered by a VA examiner, the Board finds that a more contemporaneous examination is needed. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995) (VA examination required in increased rating claim where Veteran asserts condition worsened since most recent VA examination). The examination to be conducted on current remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the severity of present symptomatology, as well as any significant pertinent interval medical history since his last VA examination in December 2010. The examiner should also be asked to render findings as to extent of functional loss due to pain and/or weakness, to include with repeated use and during flare-ups. See 38 U.S.C.A. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Also on remand, ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). The most recent record of any outpatient treatment that the Veteran has undergone is dated in 2010. However, he testified in June 2012 that he had recently received VA treatment for his knee, which included being fit for a new knee brace. Outstanding VA treatment records clearly exist. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any VA or non-VA health care provider that has treated or evaluated his knee disability since December 2010. After providing the necessary authorization to enable the AMC/RO to obtain such evidence on his behalf, all identified records must be obtained. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 2. The AMC/RO should arrange appropriate VA examination to determine the current degree of severity of the Veteran's right knee disorder. The claims folder must be made available to the examiner(s) for review of the case, and the examination report(s) should include discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. The examiner should elicit from the Veteran a detailed history of relevant symptoms. All indicated tests and studies, including X-rays, should be performed, and the examiner should review the results of any testing prior to completing the report. Any disabling manifestations specifically attributable to the Veteran's service-connected right knee disability must be fully outlined and differentiated from symptoms caused by any nonservice-connected right knee disorders. a) The examiner should conduct range of motion testing for the right knee (expressed in degrees, with standard ranges provided for comparison purposes). He/she should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination coordination associated with the right knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, he/she should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain, and/or any of the other symptoms noted above, during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran's limitation of motion is comparable to ankylosis of the knee and, if so, whether such is favorable or unfavorable, and the extent of such impairment. b) The examiner should indicate whether the Veteran has either instability or recurrent subluxation, and if so, indicate whether such symptoms are best described as slight, moderate, or severe. He/she should also indicate whether the Veteran has frequent episodes of locking, pain, or effusion in the joint. c) The examiner should indicate whether the Veteran demonstrates malunion of the tibia and fibula, and if so, whether any accompanying knee or ankle disability is best described as slight, moderate, or marked. He/she should also indicate whether the Veteran has nonunion of the tibia and fibula with loss of motion, requiring a brace. d) The examiner should also indicate the effect the patellofemoral syndrome of the right knee disability has, if any, on the Veteran's current level of occupational impairment. Specifically, the examiner should render an opinion as to whether service-connected right knee disability causes marked interference with employment, or the need for frequent periods of hospitalization. The basis for the conclusions reached should be stated in full, and any opinion(s) contrary to those already of record should be reconciled, to the extent possible. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issue of on appeal. If the benefit sought on appeal remains denied, furnish the Veteran an appropriate supplemental statement of the case and give him an appropriate time period in which to respond. All evidence should be reviewed, to include evidence submitted since the most recent supplemental statement of the case. The Veteran 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 A. HERMAN 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).