Citation Nr: 1323402 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 11-02 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left knee disability. 2. Entitlement to a rating in excess of 10 percent for right knee disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran reportedly had active duty service from October 1969 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs. A notice of disagreement was received in September 2010, a statement of the case was issued in December 2010, and a substantive appeal was filed in January 2011. 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). In May 2013, the RO received a financial status report from the Veteran with an attached written statement to the effect that the Veteran was claiming a total rating based on individual unemployability (TDIU). In this statement, the Veteran indicated that he had recently filed other claims for secondary issues. He specifically referenced that he suffered a right leg thrombosis as a result of surgery for a broken ankle which was caused by his knee disabilities. It appears that the Veteran is claiming secondary service connection for the right leg thrombosis as well as a broken ankle (right or left not specified) as due to the service-connected knees, and that all of these disabilities have rendered him unable to engage in gainful employment. Although not clear, it may be that the RO is in the process of developing these additional claims. Since it appears that the Veteran has filed a separate TDIU claim together with new service connection claims, those claims are interrelated and should arguably be considered first at the RO level. Accordingly, these matters are hereby referred to the RO for appropriate action. The appeal is being 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 is seeking a rating in excess of 10 percent for his service-connected bilateral knee disability. He was afforded a VA examination in April 2010. In September 2010, the Veteran disagreed with the ratings assigned for his bilateral knee disability, stating that "there is a significant lack of documentation of the severity of my condition." In May 2013, the Veteran submitted a statement stating that he has been declared disabled by the Social Security Administration (SSA), and that he fears he is no longer able to work because his ability to get around "has diminished significantly over the last few months." While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Thus, based on the Veteran's statements indicating a worsening, which he contends has now made him unable to work, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's bilateral knee disability. Additionally, the Board notes that the most recent treatment records associated with the claims file are dated in 2010; however, the Veteran submitted a statement in November 2012 indicating appointments with the VA in 2011 and 2012 regarding his knees. Such records are not associated with the claims file. As VA medical records are constructively of record and must be obtained, a remand to obtain these records is necessary. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, because the Veteran has reported receiving SSA disability benefits, such records must also be secured. The Court has clearly held that since such records could be relevant to adjudication of the Veteran's claim, appropriate action is necessary to obtain any such records before the Board may properly proceed with appellate review. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Accordingly, the case is REMANDED for the following actions: (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. The RO should obtain and associate with the claims file any updated treatment records. Specifically, the RO should refer to the November 2012 statement listing appointments with the VA regarding his knees. 2. The SSA should be requested to furnish copies of any and all administrative and medical records related to any application for disability benefits filed by the Veteran. 3. After obtaining the above evidence, to the extent available, the Veteran should be scheduled for an appropriate VA examination to determine the current severity of his bilateral knee disability. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. The examiner should report range of motion of the knees, to include additional functional loss due to pain, weakness, fatigue and incoordination. The examiner should also clearly report whether there is recurrent subluxation and/or lateral in stability. If so, the examiner should indicate whether it is slight, moderate, or severe in degree. 4. After completion of the above and any further development deemed necessary by the RO, the RO should review the record and determine whether increased ratings (or additional ratings) for the service-connected knee disabilities are warranted. The Veteran should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order, for appellate review. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ ALAN S. PEEVY 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).