Citation Nr: 1314633 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-15 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES Entitlement to a rating in excess of 40 percent for right knee disability status post surgery with degenerative joint disease, including on an extraschedular basis. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2013 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing held at the RO. A transcript of that hearing is of record. Following the issuance of the statement of the case in March 2010, additional VA treatment records and a letter from a VA physician were added to the claims file. In June 2012, the Veteran, through his representative, waived the right to have additional evidence submitted subsequent to the March 2010 statement of the case initially considered by the RO. 38 C.F.R. § 20.1304(c). 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 contends that his service-connected right knee disability is more severe than is contemplated by the currently assigned 40 percent rating. Specifically, at his March 2013 Travel Board hearing and in a May 2012 VA treatment record, the Veteran indicated that his right knee symptoms have worsened in severity since his most recent VA examination was conducted in February 2009. At the Travel Board hearing, he indicated that he experiences more popping symptoms in his right knee, that the dosage of his pain medication had been increased approximately six months earlier, and that he had to switch jobs due to his right knee symptoms. The May 2012 VA treatment record reflects the Veteran's complaint that his right knee symptoms had worsened in the past two to three months. 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 Weggenmann v. Brown, 5 Vet. App 281 (1993). The record reflects that the Veteran receives treatment for his right knee disability through VA. The record contains VA treatment records from the VA Puget Sound Health Care system, Seattle, Washington Division, dating through May 2012. As such, the Veteran's VA treatment records dating from May 2012 to the present should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In addition to the foregoing, VA regulations provide for referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extraschedular rating, for those cases where a service-connected disability presents an exceptional or unusual disability picture that application of the regular schedular standards is rendered impractical, such as where there is marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). The Veteran testified at the Travel Board hearing that his service-connected right knee disability has markedly impacted his employment in that he had to switch jobs because can no longer perform the duties of his regular employment as a truck driver due to his right knee symptoms and because he misses two to three days of work a month due to his right knee disability. Therefore, remand for referral of the matter to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation throughout the appeal period, is also warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the VA Puget Sound Health Care System, Seattle, Washington Division, and any associated outpatient clinic dated from May 2012 to the present, and associate them with the claims file. All attempts to obtain those records must be documented in the claims file. 2. Schedule the Veteran for a VA joints examination to determine the current severity of his service-connected right knee disability status post surgery with degenerative joint disease. The claims file and a copy of this Remand must be provided to the examiner and reviewed in conjunction with the examination. Any appropriate diagnostic testing, to include X-rays or magnetic resonant imaging tests (MRIs) should be conducted. All ranges of motion of the right knee should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, as discussed in DeLuca v. Brown, 8 Vet. App. 202 (1995). If there is functional loss as a result of weakened movement, excess fatigability, or incoordination in the right knee, the examiner should express the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the right knee could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The examiner should also determine whether the Veteran has recurrent subluxation or lateral instability of the right knee and, if so, its severity. A complete rationale for all opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims file. 3. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. Refer the issue of entitlement to an increased rating for service-connected right knee disability status post surgery with degenerative joint disease to the Under Secretary for Benefits, or to the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation at any time during the appeal period. 5. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and determine if a higher rating for the disability on appeal may be granted, and whether an extraschedular rating is warranted at any time during the appeal period. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).