Citation Nr: 1312968 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 07-31 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a rating in excess of 10 percent for synovial chondromatosis and arthritis of the left knee, status post arthroscopic synovectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 2000. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Reno, Nevada (RO). This case was remanded by the Board in June 2009 for additional development. In an December 2011 decision, the Board denied a rating in excess of 10 percent for the Veteran's service-connected left knee disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion to Vacate and Remand (Joint Motion), the Court, in a September 2012 Order, vacated the December 2011 decision and remanded the appeal to the Board. In April 2009, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C.A. § 7107(e) before a Veterans Law Judge who has since retired from the Board. The Veteran was informed by letter dated in April 2011 of his right to attend a hearing before another Veterans Law Judge. This letter informed the Veteran that if he did not respond in 30 days, the Board would assume that he did not want such a hearing. As the Veteran did not respond to this letter, the Board proceeded to adjudicate the claim. VA has not received any response from the Veteran since April 2011 that would indicate that a new hearing is both desired and warranted. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board regrets that a remand is again necessary before a decision on the merits of the claim can be reached. The Veteran's claim was previously denied on the basis that the Veteran did not meet the criteria for a rating in excess of 10 percent under any relevant diagnostic code. The September 2012 Joint Motion stated that the Board failed to properly take into account Diagnostic Code 5258, which states that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012). Specifically, the Joint Motion noted that the Veteran had a torn left lateral meniscus, stated that a "meniscus tear is analogous to a dislocation," and noted that the Veteran had complained of knee locking and swelling. In this regard, the Board notes that a shallow free edge radial tear of the lateral meniscus was found on magnetic resonance imaging (MRI) examination in December 2008. On this basis, a December 2008 VA joints examination report gave a diagnosis of a radial tear of the lateral meniscus. There is no medical evidence of record which shows that the Veteran's meniscus tear was post-operative in December 2008. Subsequently, an October 2009 VA joints examination report gave a diagnosis which included "repair of torn medial lateral menisci." However, there is no medical evidence of record of any surgical repair of the Veteran's left lateral meniscus between December 2008 and October 2009. The October 2009 examiner also relied upon the December 2008 MRI, and there is no evidence of record that additional diagnostic testing was conducted in conjunction with the October 2009 examination which would corroborate the conclusion that the Veteran's meniscus tear was post-operative at that time. In addition, the October 2009 examiner stated that the Veteran had previously undergone "[a]rthrscopy left knee x3 2001, 2002 and 2004. Debridement and meniscectomy with the procedures." However, the Board notes that the Veteran's left knee operations were performed in December 2001, February 2002, and September 2003, with no operation in 2004. While these operations did include arthroscopies and debridement, there is no evidence of record that any of them included a meniscectomy. Indeed, there is no medical evidence that the Veteran had a tear of the lateral meniscus during any of these operations. Furthermore, a November 2001 MRI specifically found that there was no definitive evidence for tears involving the medial meniscus. Accordingly, the evidence of record is contradictory as to whether the Veteran's left lateral meniscus tear has been repaired or not. As this claim was specifically remanded for consideration of the symptomatology resulting from the Veteran's left lateral meniscus tear, the Board finds that a new medical examination is required to clarify the current state of the Veteran's left lateral meniscus tear and determine the symptomatology associated with it. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); 38 C.F.R. § 3.327 (2012). In addition, the Board notes that the most recent VA medical records are dated in August 2010, there have been no attempts by VA to obtain new medical records since September 2010, and there are no medical records in the Veteran's Virtual VA file. As such, an attempt must be made to obtain any relevant medical records that exist but are not currently associated with the claims file. 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following actions: 1. The RO must contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated or examined him for the left knee disability on appeal. An attempt must be made to obtain, with any necessary authorization from the Veteran, copies of pertinent treatment records identified by him in response to this request which have not been previously secured, to specifically include any VA medical records dated after August 2010. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain named records, such records cannot be obtained, the Veteran must be notified and (a) the specific records that cannot be obtained must be identified; (b) the efforts that were made to obtain those records must be explained; (c) any further action to be taken by VA with respect to the claims must be noted; and (d) the Veteran must be notified that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left knee disability. The examiner must review the claims file and should note that review in the report. The examiner must conduct range of motion studies of the left knee, to specifically include flexion and extension, recording the range of motion observed on clinical evaluation, in terms of degrees. If there is clinical evidence of pain on motion, the examiner must indicate the degree of motion at which pain begins. The examiner must also state whether the Veteran experiences recurrent subluxation or lateral instability, malunion or nonunion of the tibia and fibula, or genu recurvatum. If recurrent subluxation or lateral instability is found, the examiner must state whether the symptom is best characterized as slight, moderate, or severe in degree. The examiner must also state whether the Veteran experiences additional functional limitations during flare-ups of the left knee disability. If additional functional limitations are found to exist during flare-ups, the examiner must estimate the limitations in terms of additional loss of degrees of range of motion on flexion and extension. In addition, the examiner must specifically state whether the Veteran's left lateral meniscus tear has been repaired, as well as whether the tear results in frequent locking, pain, or effusion. The examiner must also provide an opinion as to which of the Veteran's left knee symptoms are related to his degenerative joint disease, lateral meniscus tear, and any other left knee disorders found. Any opinion provided must include an explanation of the basis for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 3. The RO must notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 4. The RO must then readjudicate the claim and, thereafter, if the claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 J. Skaltsounis 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).