Citation Nr: 1312147 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-44 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for status post left knee anterior cruciate ligament reconstruction with patellofemoral syndrome, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Rhett D. Klok, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from December 1999 to August 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for an increased rating for his left knee disability. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran asserts a higher rating is warranted for his service-connected left knee disability. During the hearing, it was argued that the Veteran has severe instability of the knee. It was also maintained that VA should consider additional Diagnostic Codes in evaluating his claim. The Veteran submitted private medical records at the hearing. These records reflect he was treated by S. M. Wheeler, M.D., beginning in June 2010. At that time, he had some laxity and patellofemoral crepitance and pain. It was concluded he had significant chondromalacia of the left knee. The Veteran received an injection at that visit, as well as when he was seen in August 2010. Dr. Wheeler stated the Veteran's left knee had gotten progressively worse based, in part, on instability. He thought he would require a total knee replacement, but this was not a good option given his age. It was further noted he had been fitted for a brace. When seen later in August 2010, it was reported that McMurray's testing was positive. The record also shows the Veteran received physical therapy at Palmetto Therapy Services for his left knee in August 2010. It was noted at that time that since his previous visit, the Veteran had experienced two episodes of locking, popping and clicking. The United States Court of Appeals for Veterans Claims has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. at 632. In this case, the most recent VA examination was conducted in March 2010, and the Veteran has provided evidence suggesting the symptoms of his left knee disability have increased in severity. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request he furnish the names and dates of treatment from all medical providers, VA and non-VA, who have treated him since for his left knee since August 2010, to include Dr. Wheeler and Palmetto Therapy Services. After securing the necessary authorizations for release of this information, the RO should seek to obtain copies of all treatment records referred to by the Veteran not already of record. 2. Schedule a VA orthopedic examination to determine the nature and extent of his left knee disability. All necessary tests should be performed, and range of motion testing should be reported in degrees. The examiner should specifically note whether there is any subluxation, instability, locking, or effusion. The orthopedic examiner should comment on any functional impairment due to pain and the pathology associated with pain should be described. With respect to the subjective complaints of pain, the examiner should be requested to specifically comment on whether pain is visibly manifested on movement of the joints, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected disability and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected disability. The claims folder should be made available to the examiners in conjunction with the examination. 3. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claims may be granted. The RO should consider whether separate ratings may be assigned for compensable limitation of flexion and extension (see VAOPGCPREC 9-2004), or for instability of the left knee. (See VAOPGCPREC 23-97). If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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. 2012). _________________________________________________ MICHAEL MARTIN 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).