Citation Nr: 1318980 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-27 579 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 20 percent for the service-connected status-post trauma, right knee meniscectomy repair and degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to January 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision rendered by the RO in Hartford, Connecticut. The case is currently under jurisdiction of the RO in St. Petersburg, Florida. The Board remanded the case in February 2012 for the sole purpose of scheduling the Veteran for hearing held at the RO before the undersigned Veterans Law Judge in February 2013. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal, such as the February 2013 hearing transcript. During the February 2013 hearing, the Veteran submitted private medical evidence along with a waiver of initial RO review at that time. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. At his hearing, the Veteran requested that he be permitted to undergo a new VA examination for the reason that the last VA examination in January 2010 was performed in a highly inadequate manner. The Veteran averred that he barely spoke with the examiner and described the office visit as extremely brief. The Veteran asserted that, contrary to the January 2010 VA examination findings, it is clear that his right knee has deformity (swelling) and is manifested by instability if he stands up or sits for long periods of time. The Veteran indicated that he has to hold himself up at times because his right knee with give out to the side and that the knee popped out and was accompanied by excruciating pain. He had to be careful when weight was placed on the right leg. The pain was described as a 3 or 4 out of 10. The Veteran later reported having pain when he went down stairs (versus up the stairs). He noticed a grinding in his knee. He also indicated that there was always pain present with extension of his right leg. The Veteran testified that he experienced popping and cracking in his right knee, particularly popping when he was pivoting without necessary stabilization on the sides of his knee. He planned to obtain a knee brace. In addition, the Veteran mentioned that the orthopedic doctor who he saw at the VA hospital in Connecticut told him that he had a degenerative joint that was getting worse. The undersigned VLJ left the record open for 30 days for the Veteran to submit additional evidence, as necessary, to include any treatment records. The Board finds that it is critical to obtain an adequate and thorough examination for the purposes of evaluating the current severity of the service-connected disability Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate action in order to request that the Veteran provide the names and addresses of any and all health care providers who have for his right knee disability. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate copies of these records with the claims file. The RO should also obtain any outstanding VA medical records if necessary. 2. The RO should then arrange for the Veteran to undergo a VA orthopedic examination to ascertain the severity of the service-connected right knee disability. All necessary testing should be undertaken. The examiner should review the Veteran's claims file and document such review in the examination report. Any testing deemed necessary should be performed, to specifically include range of motion testing and X-ray studies to identify any degenerative changes. The examiner is asked to describe the range of motion of the right knee in degrees of flexion and extension and any functional loss due to pain or painful motion as well as weakness, fatigability, swelling, atrophy, flare-ups, or on repetitive use (consider DeLuca factors). Any additional functional loss should be expressed in terms of additional limitation of flexion or extension. The examiner is also asked to determine whether the Veteran has recurrent subluxation or lateral instability that is slight, moderate or severe. The examiner is also to consider the Veteran's statements regarding symptomatology. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ STEPHEN L. WILKINS 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).