Citation Nr: 1314289 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-15 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected postoperative residuals, including degenerative joint disease, of the right knee (referred to hereinafter as "right knee disability"). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran and I.M. ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Service connection was granted and an initial evaluation of 10 percent was assigned therein for the Veteran's right knee disability. In September 2012, the Veteran and I.M., his wife, testified regarding this matter at a hearing conducted before the undersigned Veterans Law Judge at the RO. This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC, based on review of his claims file as well as his Virtual VA "eFolder." VA will notify him if further action is required. REMAND Although the Board sincerely regrets the delay of a remand, adjudication of this matter cannot be undertaken as of yet. More development is needed. Such development is necessary to ensure that the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). I. Records Reasonable efforts must be made by VA to assist in the procurement of relevant records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). When the existence of non-Federal (private) records is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2) (2012). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1) (2012). The claimant shall be notified if requested records, whether Federal or non-Federal, cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). In an October 2006 statement, the Veteran noted that he receives ongoing VA treatment for his right knee in Macon, Georgia. He similarly reported receiving ongoing treatment from VA regarding his right knee in his hearing testimony. Specifically, he indicated that such treatment occurred at VA facilities in Dublin, Georgia, as well as in Charleston, South Carolina. Treatment records from VA facilities in Dublin and Macon, Georgia, dated only into October 2010 have been obtained. No treatment records from VA facilities in Charleston, South Carolina, have been obtained. Pertinent VA treatment records plausibly could be expected to be among the evidence before the Board, which thus has constructive notice of their existence. Bell v. Derwinski, 2 Vet. App. 611 (1992). Requests for treatment records from VA facilities in Dublin and Macon, Georgia, dated from October 2010 to present and from VA facilities in Charleston, South Carolina, therefore must be made, with notification to the Veteran if the requests are unsuccessful. The Veteran also testified that he receives ongoing right knee treatment from Dr. S. Treatment records from Dr. J.S. dated only in May and July 2007 were received in July 2007 in response to VA's request for them following the Veteran's identification and authorization with respect to them. To date, VA has not asked the Veteran to either submit Dr. J.S.'s treatment records dated from July 2007 to present or to authorize their release to VA. Such must occur. [Another authorization is required before VA can request these records because the previous authorization, which was valid for only 180 days, is no longer effective.] If the Veteran provides authorization, an initial request for these records must be made with follow-up requests as well as notification to him if they are unsuccessful as necessary. II. Medical Examination VA's duty to assist also includes a mandate that any VA medical examination obtained be adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Hayes v. Brown, 9 Vet. App. 67 (1996). A VA medical examination is adequate when it allows the Board to perform a fully informed evaluation of the claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, it must be contemporaneous if the disability at issue is service-connected. Snuffer v. Gober, 10 Vet. App. 400 (1997) (concluding that a veteran was entitled to a new examination after noting that two years had passed since his last VA examination and that the veteran contended his disability had increased in severity); Caffrey v. Brown, 6 Vet. App. 377 (1994) (holding that an examination too remote for rating purposes cannot be considered "contemporaneous"); see also Allday v. Brown, 7 Vet. App. 517 (1995); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Olson v, Principi, 3 Vet. App. 480 (1992); Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Green v. Derwinski, 1 Vet. App. 121 (1991). It must portray the current state of the service-connected disability, in other words. Here, in December 2009, the Veteran last underwent a VA medical examination of his right knee. This examination, given that it was conducted over three years ago, is of some age. Importantly, the Veteran has contended that his right knee has gotten worse since then. Specifically, his hearing testimony included his assertion that his right knee has gotten worse over the course of the past few years. He therefore must be afforded the opportunity to appear for a contemporaneous VA medical examination. Of note is that the Veteran failed to report for a VA medical examination concerning his right knee scheduled in June 2010. Neither he nor his representative has provided an explanation for this failure. This second opportunity is afforded to him in recognition of the fact that he otherwise has been very helpful in substantiating his claim. The Veteran is hereby notified, however, that failure to report for the VA medical examination scheduled on remand may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2012). Given the above, a REMAND is directed for the following: 1. Make as many requests as necessary to obtain all outstanding VA treatment records regarding the Veteran's right knee. This includes, at a minimum, records from VA facilities in Dublin and Macon, Georgia, dated from October 2010 to present and from VA facilities in Charleston, South Carolina. Associate all records received with the Veteran's claims file or "eFolder." If no records or incomplete records ultimately are received, notify the Veteran pursuant to established procedure. Document the claims file or "eFolder" as appropriate regarding this paragraph. 2. Ask the Veteran to submit updated treatment records from Dr. J.S. since July 2007 or provide another authorization for their release to VA. If the Veteran provides the authorization, make an initial request for the records and any necessary follow-up requests. Associate all records received with the Veteran's claims file or "eFolder." If no records or incomplete records are received, notify the Veteran pursuant to established procedure. Document the claims file or "eFolder" as appropriate regarding this paragraph. 3. After completion of all of the development in the above paragraphs, arrange for the Veteran to undergo an appropriate VA medical examination regarding his right knee. The claims file and pertinent documents in the "eFolder" shall be made available to and reviewed by the examiner. [A notation to the effect that this review has taken place should be made in the evaluation report.] The examiner then shall interview the Veteran regarding his pertinent history, current symptoms, treatment for them, and their impact on his activities of daily living and employment. Information regarding the onset, frequency, duration, and severity of relevant symptoms, as well as flare-ups of such symptomatology, shall be obtained. All tests, studies, and/or evaluations deemed necessary shall be performed. This shall include initial as well as repeated range of motion testing and instability testing. Regarding range of motion testing, any objective evidence of pain shall be identified. The impact of pain, weakness, excess fatigability, and/or incoordination shall be expressed in terms of the degree of range of motion lost. Their impact during flare-ups, if flare-ups are reported, also shall be expressed to the extent possible in terms of the additional degree of range of motion lost. A clear and complete explanation, including a discussion of the pertinent medical evidence and lay evidence, shall be provided for any opinion rendered. If an opinion cannot be provided without resort to mere speculation, a clear and complete explanation for why this is so shall be provided. In so doing, it specifically shall be indicated whether or not the inability to render the opinion is because more information is needed, because the limits of current medical knowledge have been exhausted, or due to some other reason. Each of the above actions shall be documented fully in an examination report. A copy of such report shall be placed in the claims file or "eFolder." 4. Finally, readjudicate the Veteran's claim for an initial evaluation in excess of 10 percent for his service-connected right knee disability. If this benefit sought is not granted in full, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. A copy of the SSOC shall be placed in the Veteran's claims file or "eFolder." No action is required of the Veteran until he is notified by the RO. However, it is reiterated that his failure to report for a scheduled VA medical examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2012). He also is advised that he has the right to submit additional evidence and argument on the issue remanded herein. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded expeditious treatment. The law indeed requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). A remand is in the nature of a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2012).