Citation Nr: 1329058 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 11-06 938 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to a rating in excess of 10 percent for lumbosacral strain with L5-S1 disc herniation. 3. Entitlement to a rating in excess of 10 percent for right wrist sprain. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 2004 to August 2004, from September 2004 to July 2005, and from June 2008 to July 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Newark, New Jersey RO. In June 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. At the hearing, the Veteran submitted duplicate medical evidence accompanied by a waiver of initial RO consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claims. See 38 C.F.R. § 3.159 (2012). Regarding left knee disability, the Board notes that the Veteran's service treatment records reflect a left knee strain that was sustained on April 1, 2008 when he slipped and fell. The Veteran contends that his current left knee symptoms are residuals of that injury. On August 2009 VA examination, the examiner noted that he was unable to find a documented injury or treatment in service regarding the Veteran's left knee, and no opinion was offered regarding the etiology of the diagnosed left knee medial collateral ligament sprain. Given the evidence of an injury in service, another VA examination to determine the etiology of the Veteran's left knee disability is necessary. Regarding the rating for low back disability, the Veteran testified at the June 2011 hearing that he receives treatment for such disability from Dr. Varga. A review of the claims file found that the RO has not sought the records of this private treatment. Private treatment records outstanding are pertinent evidence that must be secured (with the Veteran's assistance). Additionally, the Board notes that the Veteran's most recent VA examination (for both the low back disability and the right wrist disability) was in August 2009, more than four years ago. 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 an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). The Veteran has alleged in statements and testimony that the current ratings do not reflect the current state of his back and right wrist disabilities. The Veteran's statements advance an implicit claim that the back and right wrist disabilities have each worsened in the interim. Because he is competent to observe a worsening of symptoms, a contemporaneous examination to assess the current severity of his low back and right wrist disabilities is necessary. Finally, records of all VA treatment the Veteran may have received for the disabilities at issue are pertinent evidence, are constructively of record, and must be secured. The Veteran is advised that a governing regulation provides that where evidence requested in connection with a claim for VA benefits is not received within a year following the request, the claim is to be considered abandoned (See 38 C.F.R. § 3.158(a)). Accordingly, the case is REMANDED for the following: 1. The RO should secure for the record copies of the complete clinical records (any not already associated with the claims file) of any VA treatment the Veteran received for the disabilities on appeal. The RO should also ask the Veteran to identify all sources of private evaluation and/or treatment he has received for his low back disability, and to provide authorizations for VA to secure the complete updated clinical records of all such treatment and evaluations, specifically including all records of his treatment by Dr. Varga. The RO should secure for association with the claims file the complete clinical records outstanding from all sources identified. 2. The RO should then arrange for an orthopedic examination of the Veteran to determine the etiology of his left knee disability and the current severity of his service connected low back and the right wrist disabilities. The examiner must review the record (including this remand) in conjunction with the examination. With respect to the claims for increased ratings, the examiner must be provided a copy of the applicable criteria for rating low back and wrist disabilities, and the clinical findings reported must be sufficiently detailed to allow for rating under those criteria. The findings must include complete range of motion studies (to include any limitations due to pain/on use). The examiner must explain the rationale for all opinions. With respect to the service connection claim, based on review of the record, history elicited from the Veteran, and examination of the Veteran the examiner should provide opinions that respond to the following: (a) Please identify by medical diagnosis each left knee disability found. (b) Please identify the most likely etiology for each left knee disability entity diagnosed? Specifically, is it at least as likely as not (a 50% or greater probability) that it was incurred in the Veteran's active duty service/is related to the left knee strain noted therein? The examiner must explain the rationale for all opinions. 3. The RO should then review the record and readjudicate the Veteran's claims. If any remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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). These claims 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). _________________________________________________ George R. Senyk 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).