Citation Nr: 1320529 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-42 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating higher than 10 percent for internal derangement of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from October 1976 to August 1983. This appeal comes from a rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2012, the Veteran testified before the undersigned Acting Veterans Law Judge. Additional evidence was also submitted with a waiver of RO jurisdiction. A transcript of that hearing is of record. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue on 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 appeals the denial of an initial rating higher than 10 percent for internal derangement of the right knee. The Veteran's right knee disability is rated under Diagnostic Code 5259 for removal of cartilage. During her September 2012 hearing, the Veteran expressed that her right knee disability had worsened since her last VA examination in August 2011. She also expressed that she was in pain management classes and was issued a cane and knee brace since that time. Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i), VA will obtain an examination or an opinion if it is necessary to decide the claim. As the Veteran reports a worsening of her service connected right knee disability, another examination is warranted to properly adjudicate the claim. In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, and based upon guidance from the Court, remand for the purpose of obtaining a VA examination(s) is required. Prior to any examination, to ensure that all due process requirements are met and that the record is complete, the RO/AMC should obtain any outstanding, relevant records pertaining to the claim on appeal. This includes VA treatment reports from the VA Medical Center in Durham, North Carolina, since March 22, 2012. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO/AMC should also provide the Veteran another opportunity to present information and/or evidence pertinent to treatment for her right knee. Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record any VA outpatient treatment records from the Durham VA Medical Center dated since March 22, 2012. 2. Contact the Veteran and request that she identify any private records pertaining to treatment for her right knee not already of file. The Board is particularly interested in securing any medical records which would demonstrate that her right knee disability has worsened. Any records obtained must be associated with the claims folder. If the RO/AMC cannot locate any identified record, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must be given an opportunity to respond. 3. Thereafter, schedule the Veteran for a VA orthopedic examination to assess the current severity of her internal derangement of the right knee. Access to the claims file, Virtual VA and a copy of this remand must be made available to the examiner for review. In accordance with the latest worksheet for rating joint disorders, the examiner is to provide a detailed review of the pertinent medical history, current complaints, and nature and extent of any disability dating since August 2011. The examiner is specifically requested to examine the Veteran's range of right knee motion, address the impact of pain, and state whether there are findings of instability, and if so the degree of any instability. The examiner should also describe any symptoms associated with her internal knee derangement, including whether there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. A complete rationale for any opinion expressed must be provided. 4. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 5. The Veteran is hereby notified that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO must readjudicate the issue. All applicable laws and regulations should be considered. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ STEPHANIE L. CAUCUTT Acting 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).