Citation Nr: 1319076 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 11-07 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease, left knee, with limitation of flexion and history of lateral meniscus tear. 2. Entitlement to a rating in excess of 10 percent for limitation of extension, left knee. ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to August 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of the case is now with the RO in Detroit, Michigan. 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 October 2009 VA examination report is inadequate for rating purposes. Specifically, the examiner failed to make any findings as to whether the Veteran's left knee disability was manifested by recurrent subluxation or lateral instability, or the severity of those symptoms, despite the Veteran's complaints of his left knee occasionally coming out of the joint. See Veteran's Statement in Support of Claim, September 2009; see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion is adequate if based upon consideration of prior medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be fully informed). Accordingly, a new medical opinion that specifically addresses the Veteran's complaints of left knee subluxation, should be obtained. Additionally, when available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The findings of the October 2009 examination are approximately four years old and considered stale. Significantly, in March 2011, the Veteran asserted that his left knee is "basically useless," and that he can only use his left knee for a maximum of five minutes in a rapid fashion. See VA Form 9, March 2011. As there may have been a significant change in the Veteran's left knee condition since his October 2009 VA examination, the Board finds that a new examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (Board should have ordered a contemporaneous examination of the Veteran as a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Additionally, VA has a duty to obtain relevant medical treatment records. See 38 C.F.R. § 3.159(c) (2012). On remand, the Veteran should be asked to identify all medical care providers who have treated him for his left knee condition during the appeal period and these medical records should be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all medical care providers who have treated him for left knee issues during the appeal period. After securing the necessary release(s), obtain these records. A response, negative or positive, should be associated with the claims file. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected left knee disability. The claims file should be made available to and reviewed by the examiner, and the examiner should note such review in the report. a) All indicated tests and studies should be performed, including range of motion studies in degrees. b) The examiner should determine whether the left knee disability is manifested by weakened movement, excess fatigability, or incoordination. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the additional range-of-motion loss due to any weakened movement, excess fatigability, pain, flare-ups or incoordination, expressed in degrees, if possible. c) The examiner should provide an opinion concerning the degree of severity (whether mild, moderate, or severe) of any instability or subluxation of the left knee. The examiner should also determine if the left knee locks and if so the frequency of the locking. A full rationale must be provided for all stated medical opinions. 3. After completion of the above, readjudicate the issues on appeal. If any benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ MILO H. HAWLEY 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).