Citation Nr: 1324448 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-09 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a higher initial evaluation for degenerative arthrosis of the left knee, currently assigned a 10 percent evaluation. REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from January 1980 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of September 2009, which granted service connection for degenerative arthrosis of the left knee, evaluated as 10 percent disabling effective April 20, 2009. The Veteran appeals the 10 percent rating assigned in that decision. In June 2012, the appellant appeared at a videoconference hearing held before the undersigned. The evidence indicates that the Veteran is employed and he has not specifically claimed that he cannot work due to this service-connected left knee disability; therefore, the Board finds that an implied claim for a total disability rating based on individual unemployability (TDIU) has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the RO. VA will notify the appellant if further action is required on his part. REMAND At the Veteran's Board hearing before the undersigned, evidence pertaining to an October 2009 left knee injury, which the Veteran had mentioned in his November 2009 notice of disagreement, was discussed. The Veteran's representative stated that Exhibits D and E contained that information. However, Exhibits D and E consist of medical statements dated in May 2009 and June 2009, and do not mention any recent injury. Private treatment records received in June 2012 likewise do not cover that injury; there is a gap in the treatment records from May 2009 to April 2010, and the April 2010 and later reports do not mention the October 2009 injury. The Veteran must be informed that records of the October 2009 injury are not of record, and afforded an opportunity to submit such records. In this regard, staged ratings may be granted to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran testified that he believes that the VA examination in August 2009 was not thorough; that, for instance, instability was not tested. He also contends that his disability has worsened since that examination, and X-rays reports contain some support for this position. X-rays in August 2009 showed mild degenerative changes in the left knee, while X-rays obtained by the Veteran's private physician, T. Layton, M.D., in June 2012 were interpreted as showing severe tricompartmental arthrosis in the left knee. However, the private treatment records did not contain the necessary findings, such as range of motion or tests for stability, which would permit a rating based on the criteria set forth in the rating schedule. See 38 C.F.R. § 4.71a, Codes 5256-5263 (2012). In such circumstances, a new examination should be provided. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran and his representative that the private medical records received in June 2012 (two separate submissions), including Exhibits D and E, do not contain any evidence or mention of the October 2009 left knee injury and that treatment records covering the period from May 2009 to April 2010 are not of record. Tell them that if they wish this evidence to be considered, they should submit it to the RO, or authorize VA to obtain the records directly from the provider. In addition, they should be told that the same applies to any records of relevant treatment provided from July 2012 to the present. 2. Following completion of the above, schedule the Veteran for an appropriate VA examination to determine the manifestations and severity of his service-connected left knee degenerative arthrosis. The claims folder must be provided to the examiner for review in connection with the examination. In addition to range of motion studies, the examiner should also comment on any functional impairment resulting from painful motion, weakness, fatigability, repetitive motions, and/or incoordination. If feasible, these determinations should be expressed in terms of the degree of additional range of motion lost. Additionally, appropriate consideration must be given to the Veteran's own lay history of symptomatology. Because there is a dispute as to whether the Veteran's left knee was adequately tested for instability at the time of the last examination, in the opinion section, the examiner must state whether instability or subluxation is present, and identify the tests used to ascertain the presence or absence of such conditions. A complete rationale for any opinions expressed should be given. 3. After ensuring that the above development has been completed, and that any examination obtained is adequate, readjudicate the claim for a higher initial rating for degenerative arthrosis of the left knee, to include whether referral for extraschedular consideration is warranted. If the decision is less than a full grant of benefits sought, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and afforded an opportunity to respond, before the case is returned to the Board for appellate review. 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). _________________________________________________ BARBARA B. COPELAND 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).