Citation Nr: 1325985 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 13-11 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for service-connected right knee disability, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for service-connected left knee disability, currently evaluated as 10 percent disabling. 3. Entitlement to special monthly compensation (SMC) on account of the need for the regular aid and attendance of another person. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from May 1971 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2013, the Veteran testified at a Board hearing before the undersigned. A transcript of this proceeding has been included in the record on appeal. In his March 2013 substantive appeal, the Veteran raised the issue of entitlement to service connection for upper and low back conditions secondary to his service-connected knee disabilities. As these issues have not been developed for appellate review, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board notes that entitlement to service connection for a back condition was denied in a May 2002 rating decision. 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 appellant if further action is required. REMAND The last VA compensation examination of the Veteran's knees was conducted in September 2012. At his May 2013 Board hearing, the Veteran testified that his knees had gotten worse since the VA examination. He indicated that he could not walk, he had received injections to treat his knees, and his motion was more limited. Given that the Veteran's service-connected knee disabilities may have worsened since the most recent VA examination, the Board finds it necessary to remand the claims to afford the Veteran another VA compensation examination to assess the current degree of disability of his right and left knee disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board also finds that the Veteran should be scheduled for an examination in connection with his claim for SMC on account of the need for the regular aid and attendance of another person. At his May 2013 Board hearing, the Veteran testified that he needs help bathing and dressing, and that he requires a cane or walker. An opinion should address whether the Veteran, as a result of his service-connected disabilities, is so helpless as to be in need of regular aid and attendance, or is permanently bedridden. See 38 C.F.R. §§ 3.350(b), 3.352 (2012). On remand, potentially outstanding VA and private treatment records should be requested to comply with VA's duty to assist. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2012). At his hearing, the Veteran indicated that he receives regular treatment at the VA outpatient clinic (VAOPC) in Mobile, Alabama. Records dated through October 2012 have been obtained from this facility. The Veteran submitted more recent records, but records dated since October 2012 should be requested to ensure a complete record. Similarly, he indicated that he receives regular treatment from "Alabama Hospital." The record contains medical records from multiple private treatment providers. On remand, the Veteran should be asked to identify the private providers who have treated him and to provide appropriate authorization to request the records. Accordingly, this case is REMANDED for the following actions: 1. Obtain the Veteran's more recent treatment records (since October 2012) from the Mobile VAOPC and associate the records with the claims folder. 2. Send a letter to the Veteran asking him to identify any private medical facility from which he has received treatment since 2012 that may possess records relevant to the claims on appeal. Ask him to submit any relevant records that he possesses. Request any identified treatment records. Obtain a release from the Veteran as necessary. 3. Thereafter, schedule the Veteran for a VA examination to determine the severity of his service-connected right and left knee disabilities. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected right and left knee disabilities. The examiner should report the range of motion of the right and left knee, in degrees. The examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the right or left knee is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should state whether there is any evidence of recurrent subluxation or lateral instability of the right and left knee, and if so, to what extent. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. Schedule the Veteran for a VA examination to determine if the Veteran has a need for the regular aid and attendance of another person as a result of his service-connected disabilities. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed. The examiner should provide an opinion as to whether the Veteran, as a result of his service-connected disabilities, is so helpless as to be in need of regular aid and attendance, or is permanently bedridden. The Veteran is currently service connected for the following disabilities: major depression with anxiety; pulmonary embolism, status post vena cava shunt; residuals, old right knee injury, status post arthroscopy; chondromalacia, left knee, status post arthroscopy, degenerative arthritis; and hypertension. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 5. The Veteran must be advised of the importance of reporting to the scheduled VA examinations and of the possible adverse consequences, to include the denial of his claims, 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 examinations must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report, the record must indicate whether the notification letter was returned as undeliverable. 6. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran with a supplemental statement of the case and afford him an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). _________________________________________________ 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 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).