Citation Nr: 1332219 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-36 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable evaluation for a left knee meniscal tear. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from January 2002 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that rating decision, the RO granted service connection for a left knee meniscal tear, and assigned a noncompensable evaluation, effective from January 8, 2008. The Veteran appealed the assigned evaluation. In September 2012, the Veteran testified at hearing before a Veterans Law Judge at the RO. A transcript of that hearing was not associated with the record. During the hearing, the Veteran submitted additional evidence with a waiver of initial agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (2012). Thereafter, the Veteran was notified that a written transcript of the September 2012 hearing was unavailable and he was provided the opportunity to testify at another hearing before a Veterans Law Judge. In December 2012, he requested another hearing. In February 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, to provide the Veteran with the requested hearing at the RO. In July 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in San Antonio, Texas. A transcript of that hearing has been associated with the record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the paperless claims file reveals VA treatment notes that are pertinent to the appeal. The remaining documents are either duplicative of the evidence in the paper claims file or they are irrelevant to the issue on appeal. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). In this case, the Veteran was last provided a VA examination in connection with his current claim for an increased evaluation for his service-connected left knee disability in July 2010, which would have been over three years ago. Since that examination, August 2012 VA treatment notes show that the Veteran presented to the emergency room for left knee pain. He indicated that he had a constant medial and lateral ache in his left knee that he rated as 3 out of 10 in severity and increased to 6 out of 10 in severity occasionally. During the July 2013 hearing, he alleged that his left knee symptoms had increased in severity at times since the VA examination in July 2010. See hearing transcript, p. 10. Such evidence suggests a possible increase in severity. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected left knee disability. In addition, the RO/AMC should obtain and associate with the claims file all outstanding VA treatment records and any identified private treatment records. The Virtual VA electronic claims file currently includes VA treatment records dated through December 2012. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected left knee disability. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. A specific request should also be made for any outstanding VA medical records dated from December 2012 to the present. 2. After completing the preceding development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected left knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected left knee disability. The examiner should report all signs and symptoms necessary for rating the Veteran's left knee disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees and indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or, the symptomatic removal of semilunar cartilage. He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of all additional evidence. If the benefits sought are not granted, the Veteran and his attorney should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ JESSICA J. WILLS 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).