Citation Nr: 1312701 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-28 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for status post anterior cruciate ligament reconstruction and partial medial meniscectomy with osteoarthritis of the right knee. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active service from January 1989 to November 1996. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which granted service connection for the Veteran's right knee disability and assigned an initial 10 percent rating. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge sitting at the local RO. A copy of the hearing transcript has been associated with the claims file. The Board has also reviewed the Veteran's Virtual VA electronic record in conjunction with the Veteran's claim. 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 is seeking an initial higher rating for his service-connected right knee disability. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran was most recently afforded a VA examination in June 2009. However, at the March 2012 Board hearing, the Veteran testified that the severity of his right knee disability had increased since the June 2009 examination. For instance, in contrast to the VA examination, at the Board hearing, the Veteran reported a lot of pain and swelling. He also indicated that he was removed from the DCT or swat team at work due his right knee injury. He reported problems doing day-to-day chores. Whereas at the VA examination, the Veteran denied any problems with daily functions. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Thus, based on the Veteran's hearing testimony, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's right knee disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Moreover, at the Board hearing, the Veteran reported numbness and tenderness with respect to his residual scars from his right knee surgeries. Thus, the examiner should also address the severity of the Veteran's residual surgical scars. Lastly, at the Board hearing, the Veteran testified that he received physical therapy at Willamette Orthopedic for his right knee for approximately six months following his December 2008 surgery. Although there is a follow up December 2008 post-operative treatment record in the claims file, it does not appear that all of the follow up records have been obtained. Thus, the AOJ should contact the Veteran to obtain appropriate authorization so that these records can be obtained. See 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and obtain appropriate authorization so that additional private treatment records for Willamette Orthopedic may be obtained. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, such should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any additional treatment records, and completing any further necessary development, the AOJ should schedule the Veteran for a VA examination with an appropriate specialist to determine the current severity of Veteran's right knee disability. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination report must include ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain, if any. The examination report must also address whether any instability is present. The examiner should identify and completely describe any other current symptomatology. The examiner should also address the severity of the Veteran's residual surgical scars from right knee surgery, including measurements of such scar and whether any are considered unstable and/or painful. 3. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not fully granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ MARJORIE A. AUER 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).