Citation Nr: 1323179 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 04-22 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee. 2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee. 3. Entitlement to an initial rating in excess of 40 percent for thrombophlebitis of the right lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran had a period of Active Duty for Training from June to August 1982. He also served on active duty from May 1983 to October 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issues on the title page were before the Board in March 2008, at which time, the Board remanded them for further development. In November 2011, the Board granted an initial 40 percent rating for thrombophlebitis and denied entitlement to increased ratings for degenerative arthritis of the left and right knees. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the Court issued an order granting a February 2013 Joint Motion to Remand (JMR) which vacated the Board's November 2011 decision, in part, and remanded the appeal back to the Board for further consideration. The appeal has been returned to the Board for action consistent with the February 2013 JMR. 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 In the February 2013 JMR, the parties agreed that the claims file does not contain all available private treatment records. Specifically, the parties found that the December 7, 2001 and June 2, 2002 statements from the Veteran's private physician, Dr. L.K.S., which were specifically cited in the January 2003 RO decision and April 2004 Statement of the Case, have not been associated with the claims file. Pursuant to 38 U.S.C.A. § 5103A(b)(1) (2012), "the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain." See also 38 C.F.R. § 3.159(c)(1) (2012). Since the identified statements are not contained in the physical or Virtual VA claims files, the Board finds that a remand is necessary to attempt to obtain the documents and any other identified records pertinent to the Veteran's claims. The parties to the JMR also found that the Veteran's August 2008 VA examination report addressing the bilateral knee disabilities is not adequate for rating purposes because the examiner did not examine the Veteran's knees during a period of flare-up and did not otherwise offer a full analysis of the functional impairment caused by flare-ups. The Board, therefore, must return this examination report as being inadequate for rating purposes. 38 C.F.R. § 4.2. See generally Hampton v. Gober, 10 Vet. App. 481 (1997) (VA examination which does not contain an express finding regarding a disability for which an examination was requested is not sufficient to satisfy the duty to assist). On remand, the Veteran must be scheduled for a new VA examination to determine the current severity of his bilateral knee disabilities, to include whether he has functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Finally, the parties determined that the Board did not fully consider entitlement to staged or extraschedular evaluations for the knees or thrombophlebitis. Regarding the thrombophlebitis, the Veteran does not contest the grant of the initial 40 percent evaluation but seeks entitlement to an extraschedular rating. Since the previous VA examination for thrombophlebitis was conducted in 2008, the Board finds that on remand, a new VA examination should be scheduled to determine the current severity of the disability before considering entitlement to increased or extraschedular ratings. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide an authorization and release form for Dr. L.K.S. so that VA can request copies of all treatment records and physician statements from Dr. L.K.S., to include statements dated December 7, 2001 and June 2, 2002. Ask the Veteran to submit authorization and release forms for any other private provider that has treated his disabilities so that VA can obtain treatment records for review. All attempts to obtain these records must be documented in the claims file. If the AMC/RO is unable to obtain any of the relevant records, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 2. Obtain outstanding VA treatment records from the Birmingham VA Medical Center for the period from April 2009 through the present. All information which is not duplicative of evidence already received should be associated with the claims file. If the AMC/RO is unable to obtain any of the relevant records sought, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 3. Then, schedule the Veteran for a VA examination by an examiner of sufficient expertise to determine the nature and extent of all impairments due to his right and left knee disabilities. The claims file, copies of pertinent records on Virtual VA, and a copy of this remand must be provided to the examiner and he or she must indicate review of these items in the examination report. All indicated studies, including x-ray and range of motion studies (measured in degrees), should be performed. The examiner should describe in detail any current symptomatology associated with the Veteran's service-connected right and left knee disabilities including, but not limited to, any skeletomuscular and/or neurological manifestations. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint motion against varying resistance should be performed. The extent of any pain, incoordination, weakened movement, and excess fatigability on use should be described. To the extent possible, the additional functional impairment due to pain, incoordination, weakened movement, and excess fatigability should be assessed in terms of the degree of additional range of motion loss. If this is not feasible, the examiner should so state and provide an explanation as to why it is not feasible. The examiner should also express an opinion concerning whether there would be additional functional limitations on repeated use or during flare-ups (if the Veteran describes flare-ups). To the extent possible, the additional functional limitation on repeated use or during flare-ups should be assessed in terms of the degree of additional range of motion loss. If this is not feasible, the examiner should so state and provide an explanation as to why it is not feasible. 4. Schedule the Veteran for a VA examination to determine the nature and severity of his thrombophlebitis. The claims file, copies of pertinent records on Virtual VA, and a copy of this remand must be provided to the examiner and he or she must indicate review of these items in the examination report. All indicated studies should be performed. The examiner should describe in detail any current symptomatology associated with the Veteran's thrombophlebitis and indicate whether the condition manifests as intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery; persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema; persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; or massive board-like edema with constant pain at rest. 5. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. 6. The Veteran must be advised of the importance of reporting to the scheduled VA examinations and of the possible adverse consequences of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled VA examinations must be included in the claims folder and it must reflect that it was sent to his last known address of record. If he fails to report to the examinations, the claims folder must indicate whether the notification letter was returned as undeliverable. 7. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claims based on all the evidence of record, including any additional information obtained as a result of this remand. The AMC/RO must consider whether staged and extraschedular ratings are warranted for the right knee, left knee, or thrombophlebitis. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ L. M. BARNARD 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).