Citation Nr: 1323024 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-00 851 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a healed contusion injury of the right knee. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's former spouse ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran had active service from July 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the RO in Buffalo, New York, and July 2011 and March 2013 Board remands. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Veteran appeared at a Travel Board hearing before a Veterans Law Judge in October 2010. The Veterans Law Judge who held the hearing is no longer with the Board having retired after many years of dedicated service. The Veteran was informed of the retirement in a February 2013 letter and given the opportunity to appear at another hearing if so desired. Later that month, the Veteran responded that he did not wish to appear at another hearing and that he wanted his case considered based on the evidence of record. In a March 2013 remand, the Board noted that the Veteran had raised the issue of reopening of a service connection claim for a psychiatric disorder. The Board referred that issue to the Agency of Original Jurisdiction (AOJ). Review of the Veteran's paper and Virtual VA file does not reflect that the AOJ has taken any action on this issue. As such, the issue is of reopening of a service connection claim for a psychiatric disorder not before the Board and is again REFERRED to the Agency of Original Jurisdiction (AOJ) for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain records and an updated, adequate examination. First, remand is required to obtain federal records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This includes making as many requests as necessary to obtain relevant records from a Federal department or agency, including, but not limited to, records the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). In a May 2010 VA treatment record, the Veteran reported applying for SSA benefits. At the October 2010 Board hearing, the Veteran stated he was not in receipt of SSA benefits. As the evidence of record is conflicting, an attempt shall be made to obtain any existing records. Second, remand is required to obtain an adequate examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Remand may be required if record before the Board contains insufficient medical information for evaluation purposes. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). Where a service-connected disability causes multiple problems or has multiple, separate and distinct manifestations, separate ratings may be assigned. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Additionally, where a VA examination does not address functional limitations due to orthopedic disorders, remand is required. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that remand is required where VA examination did not indicate consideration of factors cited in 38 C.F.R. §§ 4.40, 4.45, 4.59). A mere medical conclusion is insufficient to permit the Board to make an informed decision regarding the probative value of that opinion. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Here, the most recent VA examination did not properly assess additional funcitonal limitation: the examiner noted it would not be feasible to render an opinion regarding any additional limitations due to pain, weakness, fatigabiloty, or incoordination during flare-ups or upon repetitiveuse. No supporting rationale for that opinion was provided. Additionally, the examination did not address whether any leg length discrepancy or arthritis was a residual of the service-connected right knee disability. Accordingly, remand is required or an examination Third, remand is required to obtain compliancewith the Board's prior remand. A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, a July 2011 remand requrested a medical opinion addressing whether arthritis was associated with the Veteran's service-connected right knee disability. A July 2011 VA medical opinion was obtained, but it did not provide any such etiological opinion. Accordingly, remand is required to obtain such an opinion. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the current residuals and severity of his service-connected right knee disability The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the examiner for review. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. All indicated tests and studies, to include range of motion testing of the right knee, expressed in degrees, with standard ranges provided for comparison purposes, must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must describe all symptomatology due to the Veteran's service-connected right knee disability. It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected right knee disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Finally, an opinion must be stated as to whether any pain found in the knee could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner must determine whether the Veteran's arthritis and leg length discrepancy is due to the service-connected right knee disability. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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 any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ K. MILLIKAN 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).