Citation Nr: 1318528 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 05-20 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an increased rating in excess of 10 percent for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from February 1983 to September 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, granted an increased rating of 10 percent for the service-connected left knee disability, effective August 30, 2004. The Veteran testified during a hearing before a Veterans Law Judge in November 2007. A transcript is of record. The claim was remanded in January 2008 for additional development. In December 2009, the Board denied the claim for an increased rating for a left knee disability. The Veteran appealed that decision, and in October 2010 the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (Joint Motion), vacating the Board's December 2009 decision and remanding the case for action consistent with the Joint Motion. In October 2011 and September 2012, the Board remanded the claim for additional development. Unfortunately, this development is not yet complete. Accordingly, 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 In its September 2012 remand, the Board requested that the Veteran be provided with a VA examination to determine the current severity of the left knee disability. The Board specifically requested that the examiner determine whether the Veteran had recurrent subluxation or lateral instability, and if so, whether it would be considered slight, moderate, or severe. The examiner was also requested to consider the impact of the Veteran's reported flare-ups on left knee function. The Veteran received a VA examination in February 2013. In the examination report, the examiner indicated that there was no evidence or history of recurrent patellar subluxation/dislocation; however, the examiner did not provide any additional information or opinion and did not note the Veteran's history of reporting recurrent subluxation and instability. At the end of the report, the examiner stated that if knee tendons slip out of place, the knee joint can feel unstable and placing weight on the affected knee while standing or walking could cause it to give out or give way. The examiner did not explain how this statement was relevant to this case. It is unclear whether the examiner was stating that this is a part of the Veteran's left knee symptomatology. The examiner then provided a positive opinion regarding the service connection of the left knee disability and stated that the knee was mild to moderately affected. The Board notes that service connection has already been established, so an etiology opinion was not necessary. Moreover, it is unclear exactly what the examiner was referring to when he stated that the knee was mild to moderately affected. Finally, the Board notes that the examiner did not specifically address the Veteran's reports of flare-ups as requested. Where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). As the Board's September 2012 remand order has not been complied with, remand of the issue is necessary. See Stegall v. West, 11 Vet. App 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Upon remand, records of ongoing VA treatment should be obtained. The Board requested in the September 2012 remand that VA treatment records beginning in July 2010 be obtained and subsequently records through October 2010 were associated with Virtual VA. It is unclear whether there are outstanding records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records, including those created since October 2010, and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above development has been completed, the Veteran should be afforded a new VA examination to determine the current severity of his service-connected left knee disability. The claims file must be reviewed by the examiner. The examiner should report the ranges of left knee motion in degrees. The examiner should determine whether the left knee disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain, or flare-ups. As the Veteran has reported flare-ups of left knee symptoms, the examiner must specifically address these reports and opine as to the functional impairment in terms of limitation of motion incurred during or as a result of such flare-ups. The examiner should note the points in the ranges of motion when pain becomes evident. The examiner should determine whether the Veteran has recurrent subluxation or lateral instability of his left knee as a result of his service-connected disability, and if so, whether it would be considered slight, moderate, or severe. The examiner must specifically discuss the Veteran's reports of subluxation and instability in providing the opinion. All opinions expressed must take the Veteran's reports into consideration. 3. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 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 2002 & Supp. 2012). _________________________________________________ JAMES L. MARCH 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).