Citation Nr: 1333759 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-17 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for dislocated patella with right knee sprain and history of synovitis. 2. Entitlement to an initial evaluation in excess of 10 percent for right knee with instability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board acknowledges the Veteran's April 2012 statement in which the Veteran explained that he wanted to withdraw his right knee claim. It appears from the statement that the Veteran wanted to withdraw a new right knee claim that he had recently filed but did not want to withdraw his current appeal. Therefore, the Board does not find that the Veteran is requesting to withdraw his right knee appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND New evidence was obtained by the RO after the RO issued a Statement of the Case in March 2010. Pursuant to 38 C.F.R. § 19.37(a), if evidence is received by the AOJ prior to the case being transferred to the Board and the evidence was not considered in the previous Statement of the Case, a Supplemental Statement of the Case should be furnished to the appellant and his representative unless the additional evidence received duplicates evidence previously of record or is not relevant to the issues on appeal. In this case, a Statement of the Case was issued in March 2010 for the two issues on appeal. The Veteran filed a substantive appeal in April 2010 and the issues were appealed to the Board. Since the last Statement of the Case was issued in March 2010, the Veteran has submitted a statement and was afforded a VA examination. In the Veteran's April 2010 statement, the Veteran explained that his right knee hurt all the time and that he cannot claim stairs, stand or walk without pain. He also reported numbness that begins in his right knee and goes up his right thigh. The Veteran was afforded a complete VA examination in June 2012 which also included x-rays evidence. Neither the Veteran's statement nor the June 2012 VA examination is duplicative of evidence previously received or considered in the March 2010 Statement of the Case. Furthermore, the VA examination report was generated by VA, as opposed to having been submitted by the Veteran. This is not a case where a waiver of consideration by the RO is appropriate. Both pieces of evidence are highly relevant to his knee claims on appeal. Despite this, no Supplemental Statement of the Case has been issued and the RO has not reviewed this evidence. For these reasons, the case must be remanded back to the AOJ for review issuance of a Supplemental Statement the Case. As the Veteran appears to regularly seek treatment at the VA, all recent VA treatment records should be obtained and associated with the claims file or uploaded to Virtual VA, while the case is in remand status. Also, in a July 2012 Medical Index Summary, the RO noted that a document dated on October 4, 2011 was relevant to the Veteran's knee claims. The only VA treatment records dated on October 4, 2011 associated with claims file is for treatment of the Veteran's eyes. An effort must be made to obtain any VA treatment records dated October 4, 2011 that are relevant to the Veteran's knee case and associate them with the claims file. VA has a duty to obtain all pertinent VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain all recent VA treatment record since November 2011 and associate them with the claims file or upload them to Virtual VA, including any relevant VA treatment records dated on October 4, 2011. 2. After the above development has been completed, readjudicate the claims on appeal in light of all of the evidence of record, including a review of the Veteran's April 2010 statement and a review of the June 2012 VA examination of the knees (with x-ray evidence), as well as any evidence added pursuant to this Remand. If the issues remain denied, the Veteran should be provided with a SSOC as to the issues, and afforded a reasonable period of time within which to respond thereto. 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). 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). _________________________________________________ BETHANY L. BUCK 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) (2013).