Citation Nr: 1311516 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-44 026A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased evaluation for left knee meniscus tears, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for a bilateral ankle disorder, to include as secondary to service-connected left knee meniscus tears. REPRESENTATION Appellant represented by: George C. Piemonte, Attorney ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1996 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In an October 2010 VA Form 9, Appeal to the Board, the Veteran requested a videoconference hearing before the Board. That request was acknowledged in a letter sent to him in February 2012. The letter also informed the Veteran that he had been scheduled for a hearing before a Veterans Law Judge in April 2012. Prior to the hearing, in March 2012, the Veteran requested that the hearing be rescheduled for good cause. He cancelled the hearing request in an October 2012 statement. The statement was received by VA one day before the rescheduled hearing. Therefore, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In August 2010, the Veteran submitted a claim for a temporary total rating based on convalescence for his service-connected left knee disability. There is no indication that any action has been taken on that issue. Therefore, the Board does not have jurisdiction the issue, and it is referred to the AOJ for appropriate action. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). In this case, the Veteran's was last provided a VA examination in connection with his current claim for an increased evaluation for his service-connected left knee disability in September 2009, which would have been over three years ago. Since that examination, the Veteran has alleged that his left knee symptoms have increased in severity. Moreover, in a recent private treatment note dated in April 2012, the Veteran's treating orthopedic surgeon noted that the Veteran's last magnetic resonance imaging (MRI) scan conducted over two years ago was negative. However, the surgeon stated, "[The Veteran] clearly has something untoward going on in this knee. He may have an internal derangement. This is not just a patellar tendinitis. He has an effusion within the joint and he is quiet lame." Following an MRI, in another April 2012 private treatment note, the orthopedic surgeon noted that there was no classical internal derangement in the left knee; however, he suspected that the Veteran would need a diagnostic knee arthroscopy and synovial biopsy "at some point this year." Such evidence suggests a possible increase in severity. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected left knee disability. With respect to the private orthopedic treatment notes dated in April 2012, the Board also observes that they were received after the issuance of the supplemental statement of the case (SSOC) and have not been considered by the RO. The Veteran did not submit a waiver of the RO's initial consideration of the evidence; therefore, the additional evidence must be referred to the RO for review and preparation of a SSOC, if a grant of the benefit sought is not made. In addition, the RO/AMC should obtain and associate with the claims file all outstanding VA treatment records and any identified private treatment records. The claims file currently includes VA treatment records dated through August 2010. 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). Additionally, the Board notes that the Veteran submitted a VA Form 21-4142 requesting that VA obtain treatment records from each of his private orthopedic providers due to ongoing treatment. 38 C.F.R. § 3.159(c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." There is no indication that the RO sought the identified treatment records. Further, in an October 2010 statement associated with the VA Form 9, the Veteran's attorney asserted that the RO failed to obtain and consider the relevant private orthopedic treatment records. The attorney also referenced a July 2009 private treatment record that notes a possible nexus between the Veteran's claimed bilateral ankle disorder and an altered gait from his service-connected left knee disability. It does not appear that the private family treatment provider's notes were ever sought or obtained in connection with this claim. Finally, in a March 2012 statement, the Veteran's attorney indicated that the Veteran was scheduled to appear at a Social Security Administration (SSA) disability hearing in April 2012. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). When VA is put on notice of the existence of SSA records that may be relevant to a claim, as in this case, it must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493, 494 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Thus, the Board finds that the RO should obtain and associate with the claims file a copy of SSA's determination, if any, as well as copies of all medical records underlying that determination. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected left knee disability and claimed bilateral ankle disorder. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO/AMC should specifically request that the Veteran provide a signed authorization to enable it to obtain all outstanding pertinent medical treatment records from the private orthopedic physicians identified in an August 2010 VA Form 21-4142 and the private family physician identified in the statement associated with the October 2010 VA Form 9. A specific request should also be made for any outstanding VA medical records dated from August 2010 to the present. 2. The RO should obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. After completing the preceding development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected left knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected left knee disability. The examiner should report all signs and symptoms necessary for rating the Veteran's left knee disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees and indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or, the symptomatic removal of semilunar cartilage. He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the above actions, the RO should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. Further development may include affording the Veteran a VA examination or obtaining an additional medical opinion with respect to the Veteran's claim for service connection for a bilateral ankle disorder, to include as secondary to the service-connected left knee disability. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of all additional evidence. If the benefits sought are not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ JESSICA J. WILLS 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).