Citation Nr: 1320719 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-03 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial rating in excess of 10 percent for exertional compartment syndrome, left lower leg. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to June 1980, and from June 2006 to October 2007. He also served in the Army National Guard. This matter comes before the Board of Veterans' Appeals from a rating decision of the Boston, Massachusetts, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for an increased rating for his exertional compartment syndrome, left lower leg, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran contends that his left leg disability warrants a higher disability evaluation than the current 10 percent rating. He asserts that he has been discharged from the Army National Guard due to his service connected left leg and knee disabilities. The Veteran's left knee was last examined by VA in June 2008. At that time, the Veteran complained of persistent weight bearing pain from the left knee down to the ankle. It was reported that range of motion and instability testing of the left knee and ankles was normal. Since then, private and VA treatment records report the Veteran's continued complaints of left knee pain. In June 2009, a private physician reported that the Veteran had osteoarthritis of the left knee, and a permanent (knee) condition with continued pain from the knee to mid-tibia. As mentioned above, the last VA compensation examination of the Veteran's left knee and leg was approximately 5 years ago, and it has been asserted that he has increased left knee symptoms, including pain and left knee degenerative joint disease. As a result, another examination is needed to reassess the severity of this left knee and leg disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating) and Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the 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). See, as well, VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule an appropriate VA compensation examination to reassess the severity of the Veteran's left leg and knee disability (exertional compartment syndrome, left lower leg). Perform all necessary diagnostic testing and evaluation to measure the range of motion of the left knee and ankles on extension and flexion. An opinion is needed concerning whether there are objective clinical indications of left knee instability or laxity (and, if there are, whether the instability and/or laxity is slight, moderate or severe). The designated examiner should indicate whether there are objective clinical indications of pain or painful motion, weakness, premature or excess fatigability, and incoordination, and if there are, whether the Veteran has additional functional impairment in the left knee and ankle as a consequence - including additional limitation of motion above and beyond that shown on examination, such as during prolonged, repetitive use of this knee and ankle or when his symptoms are most problematic ("flare ups"). And, if possible, the examiner should try and quantify the amount of this additional impairment, such as by specifying the additional restriction in motion. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, and 4.59. To facilitate making these important determinations, it is absolutely imperative the examiner reviews the claims file for the pertinent medical and other history, including a complete copy of this remand. The Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have detrimental consequences on this pending claim as it would require rating this disability based on the existing evidence in the file. See Turk v. Peake, 21 Vet. App. 565 (2008) (In an initial-rating claim, when the Veteran fails to report for an examination, the case shall be rated on the evidence of record rather than summarily denied because an initial-rating claim is an original compensation claim under 38 C.F.R. § 3.655(b)). 2. Then readjudicate this claim for a higher initial rating for the left leg and knee disability (exertional compartment syndrome, left lower leg) in light of the additional evidence. This includes determining whether a separate rating is warranted under DC 5257 for instability of this knee. If additional compensation for this disability is not granted to the Veteran's satisfaction, send him a supplemental statement of the case and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. 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). _________________________________________________ K. PARAKKAL 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).