Citation Nr: 1330148 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-12 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an evaluation in excess of 10 percent for the service-connected right anterior cruciate ligament repair with scar and mild degenerative joint disease ("right knee disability"). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from December 1984 to August 1982. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran presented testimony before the Board March 2013; a transcript has been associated with the Veteran's virtual record. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A preliminary review of the record discloses the matter is not ready for appellate disposition. The Board has determined that additional evidentiary development is necessary. The Veteran contends that his right knee disability has worsened in severity. Specifically, he testified that since his VA examination in April 2012, his right knee disability is productive of increasing pain and limited motion. The Board cannot ascertain to what extent the right knee disability has increased in severity, if at all, without a new VA examination. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, where there is evidence of a material change in the Veteran's condition or as in the instant case, when the Veteran asserts that the service-connected disability in question has undergone an increase in severity since the time of his last VA examination, the prior VA examination report may be inadequate for rating purposes and a new VA examination is required. 38 C.F.R. § 3.327(a); See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The Veteran testified that he continues to seek treatment at the Seattle VA Medical Center (VAMC), to include physical therapy for his right knee disability. Updated records of any subsequent treatment the Veteran has received for the right knee disability are pertinent evidence that must be secured. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: (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. Secure for the record copies of the complete updated VA clinical records of all evaluations and treatment (including physical therapy) the Veteran received for his right knee disorder. All requests for records and their responses must be associated with the claims folder. 2. After completion of the foregoing, schedule the Veteran for a VA examination to ascertain the severity of his right knee disability. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be available for review by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records in Virtual VA or VBMS that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated tests or studies must be completed. a) Examination findings pertinent to the right knee disability should be reported to allow for application of VA rating criteria for musculoskeletal disabilities. Range of motion, using a goniometer, should be reported along with the point (in degrees) that motion is limited by additional functional loss due to pain, weakness, fatigue or incoordination. The examiner should perform repetitive range of motion testing and also comment on the degree of limitation of function, if any, due to pain, weakness, lack of endurance, fatigue, or incoordination. b) The examiner should indicate whether there is recurrent subluxation or lateral instability of the right knee and if so, whether it is slight, moderate or severe. c) The examiner should also ascertain whether or not the Veteran has nonunion or malunion of the tibia and/or fibula with knee disability. If there is nonunion, the examiner should indicate whether there is loose motion requiring a brace and if there is malunion, whether the knee disability is slight, moderate, or marked. d) Please discuss the functional limitations, if any, associated with, and expected effect on employment resulting from the Veteran's service connected right knee disability(not including the effects of any non-service connected disabilities). 3. In the interest of avoiding further remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record and should consider whether a total rating for compensation based on individual unemployability (TDIU) is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran 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). _________________________________________________ MILO H. HAWLEY 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).