Citation Nr: 1310320 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 09-13 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased disability rating for service-connected right knee instability, currently evaluated as 10 percent disabling. 2. Entitlement to an increased disability rating for service-connected degenerative arthritis of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and the Appellant's Spouse ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1960 to May 1964. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. Jurisdiction over the claims folder subsequently was returned to the RO in Detroit, Michigan. As an initial matter, the Board finds some review of the procedural history is warranted. Service connection for a right knee disability was originally awarded by the RO in a September 1964 rating decision and a 20 percent disability rating was assigned. In March 2005, the RO split the Veteran's 20 percent knee disability rating into two 10 percent ratings-one for instability, and one for degenerative arthritis. In February 2008, the Veteran filed a claim for increased ratings for his service-connected right knee disabilities. The RO denied these claims in the above-referenced August 2008 rating decision. The Veteran disagreed and perfected an appeal. In a July 2010 decision, the Board denied the claims for increased ratings of the right knee disabilities. The Veteran appealed the denial of his knee claims to the United States Court of Appeals for Veterans Claims (Court). In a November 2011 Order, the Court granted a Joint Motion for Remand (JMR), by the Veteran's then-representative and the VA General Counsel. In the July 2010 decision, the Board granted an increased rating for the Veteran's service-connected right ankle disability and the rating was not challenged. The Veteran testified at a Travel Board hearing which was chaired by the undersigned Acting Veterans Law Judge at the Detroit RO in March 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. 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 Consistent with the Court's November 2011 Order granting the parties' JMR, the Board has determined that remand of the Veteran's claims of entitlement to ratings in excess of 10 percent for right knee instability and arthritis, respectively, is appropriate. In this case, the parties' filed a JMR arguing that the Veteran's VA outpatient treatment records were incomplete. Specifically, the parties noted that the Veteran testified that he had not been able to stand on his right leg for seven to eight years and that he had been receiving treatment at the VA medical center in Detroit, Michigan. The parties concluded that the Veteran may have VA treatment records dating back to 2002 or earlier. The Veteran also argued that the May 2008 VA examination report was flawed because the examiner did not have access to the claims file and the records contained within it, in addition to other outstanding treatment records. In its July 2010 decision, the Board acknowledged the Veteran's testimony that he had been treated for his knee disabilities more than one year prior to his claim for increased ratings, and that such records were not associated with the claims folder. The Board explained that a remand was not necessary because the relevant focus for adjudicating the Veteran's increased rating claims is on the evidence concerning the state of the disability from the time period one year before the claim was filed [i.e. February 2007] until VA makes a final decision on the claim. The Board cited Hart v. Mansfield, 21 Vet. App. 505 (2007). The parties to the JMR cited Moore v. Shinseki, 555 F.3d 1369 (2009) and argued that the Board misapplied Hart. The parties asserted that treatment records dating back to 2002 should have been obtained or otherwise accounted for. The Board acknowledges that in Moore, the Court noted that the clear mandate of the VA regulations is that a veteran's disability be evaluated in light of its whole recorded history. However, the facts of the case in Moore are distinguishable from the present case. First, in Moore, the issue involved a claim for an initial rating for a service-connected psychiatric disability, not an increased rating for an established orthopedic disability. In that case, the Veteran had undergone inpatient care in service and the records had not been obtained. The Court found that the lengthy in-patient stay may contain detailed information relevant to the Veteran's underlying psychiatric disorder, including his behavior, even though the treatment occurred outside of the period for which the Veteran was entitled to a disability rating. The Board finds that a psychiatric disorder is distinguishable from an orthopedic disorder because an examiner cannot simply perform an X-ray and determine the severity of a person's psychiatric disability. Indeed, the Court in Moore noted that a review of a Veteran's entire history was particularly important in the context of psychiatric disorders. Id. at 1373. Here, however, the issue involves a right knee disability and the May 2008 VA examiner performed the necessary tests to determine the severity of the knee disability. In its July 2010 decision, the Board found that there was no need to review treatment records for a period in which the Veteran was not entitled to receive an increased rating in order to make a determination with regard to the period in which a VA examiner was able to test and make a determination. Nevertheless, in light of the Court order granting the parties' JMR on the basis that such records were not obtained, the Board finds that a remand is appropriate. On remand, the RO/AMC should obtain and associate with the claims file all outstanding VA and private medical records related to the Veteran's claims for increased ratings which have not been associated with the claims file. The Board acknowledges that in August 2012, the Veteran's former representative submitted additional private treatment records from his private physician, Dr. A.P. These records should be reviewed prior to any additional adjudication. The Veteran should be provided the opportunity to submit any additional authorization and consent forms for any other private treatment records that he believes will support his claims. Regarding VA outpatient treatment records, the Board notes that the earliest VA outpatient treatment records are dated in January 2008. Additionally, the most recent VA outpatient treatment records are dated in July 2008. Therefore, any additional VA medical records related to the Veteran's right knee dated prior to January 2008 or from July 2008, should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The parties to the JMR also argued that if the Board finds that the outstanding treatment records indicate that a VA examination is necessary, such examination should be afforded to the Veteran. The Appellant's brief noted that the claims file was not available to the May 2008 VA examiner and as such, may have been prejudicial to the claim as the examiner had no objective medical information regarding the nature and extent of the Veteran's knee injury as it had deteriorated over the years. Specifically, the Appellant's brief referenced his severe tricompartmental osteoarthritis and severe chondromalacia of the patella. In light of the parties' JMR arguments that the historical treatment records may have some bearing on the present disability rating, the Board finds that a VA addendum opinion regarding the severity of the Veteran's right knee disabilities is appropriate. Accordingly, the Board finds that upon receipt of any outstanding records, an addendum opinion should be sought from the May 2008 VA examiner. The examiner must have access to the claims file as well as any records received as a result of this remand. The examiner is also asked to review the private treatment records from Dr. A.P. that have been recently added to the file. If the May 2008 VA examiner is unavailable, a VA opinion should be sought from another VA examiner. The Board leaves the necessity of a VA examination to the discretion of the VA examiner. However, the Board cautions that the Veteran has indicated that he may not be able to attend a VA examination. See Transcript [T.] page 8. Lastly, as noted in the July 2010 decision, the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, but he has not claimed to be unemployable due to his service-connected disabilities alone. As such, the Board concluded in July 2010 that the question of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities had not been raised. This conclusion was not addressed in the JMR or the Appellant's Brief. The additional evidence received since the JMR has not raised the issue. Therefore, the Board again finds that the question of entitlement to a TDIU due to service-connected disabilities has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and ask him to specify all private and VA medical care providers who currently treat him for his right knee disabilities. The RO/AMC should acknowledge that records from Dr. A. P. that were submitted in August 2012 are already of record. After the Veteran has signed the appropriate releases, the RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. The RO/AMC should obtain any records of treatment or evaluation of the right knee from the Detroit, Michigan VAMC, dated prior to January 2008, as well as from July 2008 to the present. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Upon receipt of any records received as a result of this Remand, the claims folder should be returned to the May 2008 VA examiner, if available, in order to render an addendum opinion regarding the severity of the Veteran's right knee disabilities for the entire period on appeal. If the May 2008 VA examiner is not available, another VA opinion should be obtained. The examiner should indicate that the claims folder has been reviewed. The examiner is asked to review the treatment records, including records that reference the severity of the Veteran's osteoarthritis and chondromalacia of the patella, as well as private records from Dr. A. P. regarding discussion of the Veteran's difficulty bending his right knee and April 2009 recommendation for surgical intervention. Following such review of records, the examiner should offer an opinion as to the severity of the Veteran's current right knee disabilities. The Board leaves to the VA examiner's discretion, the need for another VA examination. The VA examiner should clearly outline the rationale and discuss the medical principles involved for any opinions expressed. If the requested medical opinions cannot be given, the examiner should specifically state the reason why. 4. Thereafter, the RO/AMC shall readjudicate the Veteran's claims for increased ratings. If the benefit sought remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be given an opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MATTHEW D. TENNER Acting 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).