Citation Nr: 1315419 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-15 264A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial compensable rating for a left knee strain disorder prior to January 6, 2008. 2. Entitlement to a disability rating in excess of 10 percent for a left knee strain disorder since January 6, 2008. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2001 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The RO subsequently increased the disability rating to 10 percent, effective January 6, 2008. In October 2009, the Veteran requested a hearing before a Veterans Law Judge sitting at the RO and was notified of the hearing date in December 2011. However, he failed to attend the hearing scheduled for February 2012. His request for a Board hearing is therefore considered withdrawn. 38 C.F.R. § 20.704(d) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 seeks a higher rating for his service-connected left knee disability. While delay is regrettable, the Board finds that additional development is needed in this case. VA treatment records in the claims file are current only as of March 2010, and more recent records are not available for the Board's review via Virtual VA. The outstanding VA records may be pertinent to the claims on appeal. Thus on remand, any additional, pertinent VA treatment records should either be made accessible on Virtual VA or be printed and added to the file. The RO should also contact the Veteran and ask that he identify any additional, pertinent non-VA treatment records that are outstanding. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, the most recent VA examination of the Veteran's left knee disability was in January 2009, more than four years ago. In light of the state of the record, the Board finds that the claim should be remanded for an examination to assess the current severity of the Veteran's left knee strain. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and ask him to identify any additional sources of VA and non-VA treatment for his left knee strain disability. After securing the necessary authorizations for release of this information, the RO should seek to obtain copies of all records referred to by the Veteran not already of record, including any pertinent VA treatment records dated since March 2010. The RO must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of the nature, extent and severity of his left knee disability, to include the impact of any pain or instability, as well as the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Upon completion of the above, the Veteran should be scheduled for an appropriate VA examination to determine the severity of his left knee disability. The claims folder should be made available and reviewed by the examiner and all necessary tests and should be conducted. The examiner should identify all left knee pathology and report any loss of range of motion during flare-ups. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran has any left knee instability or subluxation. A complete rationale must be provided for all opinions offered. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. 3. Then the Veteran's claim should be readjudicated. In doing so, the RO must consider the provisions of 38 C.F.R. § 4.59, which relate to painful motion and the decision by the United States Court of Appeals for Veterans Claims (Court) in Burton v. Shinseki, 25 Vet. App. 1 (2011). If the claims remain denied, the Veteran should be provided with a supplemental statement of the case and be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board if 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). _________________________________________________ STEVEN D. REISS 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).