Citation Nr: 1332114 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-13 817A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for chondromalacia patella with degenerative joint disease of the right knee, status post medial and lateral meniscectomies. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1976 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Due to the location of the Veteran's residence, jurisdiction of his appeal is with the RO in Oakland, California. In July 2013, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 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 Regrettably, a remand is necessary for further evidentiary development. The Veteran was afforded a VA examination in August 2009. His testimony at his hearing indicated a worsening of his right knee disability since that examination. Therefore, in light of the Veteran indicating a worsening of his disability, a remand is necessary to afford the Veteran a new VA examination to ascertain the current level of this disability. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). The most recent treatment records from the VA Medical Center (VAMC) in Sacramento, California are dated in March 2011, while the most recent records from the VA Community Based Outpatient Clinic (CBOC) in New Albany, Indiana are dated in April 2012. At his July 2013 hearing, the Veteran testified living in Indiana for a year and a half as well as receiving current treatment from the Sacramento VAMC. Accordingly, on remand, records of any ongoing VA treatment that the Veteran may be receiving should be obtained. Also, the Veteran reported to the August 2009 VA examiner that his private care provider was R.T., M.D. Records from Dr. R.T. dated from 2007 to 2008 have been obtained; to the extent that the Veteran has received additional treatment from Dr. R.T., those records should also be obtained. Furthermore, the Veteran testified that he would be submitting additional private records, which was not done. On remand, any additional private treatment records identified by the Veteran should be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of right knee treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from Dr. R.T., from the Sacramento VAMC, from the New Albany CBOC, and from any other private physicians identified by the Veteran. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Accord the Veteran an appropriate VA examination to determine the current level of severity of his service-connected chondromalacia patella with degenerative joint disease of the right knee, status post medial and lateral meniscectomies. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. All pertinent manifestations of the service-connected right knee disability should be annotated in the examination report. In particular, the examiner should undertake range of motion studies of the Veteran's right knee and comment on the degree of disability due to functional losses such as pain and weakness. In addition, the examiner should elicit information as to the frequency, duration, and severity of any associated symptomatology, to include recurrent subluxation or lateral instability; dislocated semilunar cartilage with episodes of locking, pain, and effusion into the joint; symptomatic removal of semilunar cartilage; impairment of the tibia and fibula (nonunion or malunion); and genu recurvatum. The examiner should also note the presence of any ankylosis. Also, the examiner should discuss the extent of any loss of function in daily activities, including work and physical activity due to the service-connected right knee disability. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Then, readjudicate the issue on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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).