Citation Nr: 1333769 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-30 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating higher than 10 percent for degenerative joint disease (DJD) of the left knee. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Appellant is a veteran who had active military service from November 1983 to July 1992. This appeal to the Board of Veterans' Appeals (Board) is from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In support of his claim, the Veteran testified at a video conference at the RO in Waco, Texas, in November 2011 before the undersigned Veterans Law Judge of the Board (VLJ). During the hearing, the Veteran and his representative indicated they would be submitting additional VA treatment records. They since have submitted this additional evidence. They waived the right to have the RO initially consider this additional evidence, once submitted, as the Agency of Original Jurisdiction (AOJ). 38 C.F.R. §§ 20.800, 20.1304. The claim requires further development before being decided on appeal, however. So the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, primarily to schedule another VA compensation examination to reassess the severity of the Veteran's left knee disability. REMAND The Veteran contends that his left knee disability has significantly worsened since his VA examination in November 2010, nearly 3 years ago. During his November 2011 hearing, he testified to experiencing increased symptoms including instability and weakness in this knee; he said this knee often "gives out" on him. Another examination is needed to assess the current severity of his left knee disability to include any instability and weakness. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). All outstanding VA records that are relevant to his claim should be obtained. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are constructively part of the record which must be considered). Additionally, the RO has not yet reviewed the November 2010 VA compensation examination in conjunction with the Veteran's appeal. (The last statement of the case was issued in March 2010, and no supplemental statements of the case have been issued with regard to this claim.) Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Give the Veteran an opportunity to identify any additional healthcare provider who has treated him for his service-connected left knee disability. After securing any necessary authorization from him, obtain all identified treatment records not already in the claims file. He also must be appropriately notified if unable to obtain any identified records. 2. Also obtain his VA treatment records that pertain to his left knee disability dated since May 2008. He also must be appropriately notified in the event it is not obtained. 3. Upon receipt of all additional records, schedule an appropriate VA compensation examination to reassess the severity of his left knee disability. Perform all necessary diagnostic testing and evaluation to measure the range of motion of this knee on extension and flexion. Opinion also is needed concerning whether there are objective clinical indications of instability or laxity (and, if there are, whether the instability and/or laxity is slight, moderate or severe). As well, the designated examiner should indicate whether there are objective clinical indications of pain or painful motion, weakness, premature or excess fatigability, and incoordination, and if there are, whether the Veteran has additional functional impairment in this knee as a consequence - including additional limitation of motion above and beyond that shown on examination, such as during prolonged, repetitive use of this knee or when his symptoms are most problematic ("flare ups"). And, if possible, the examiner should try and quantify the amount of this additional impairment, such as by specifying the additional restriction in motion. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, and 4.59. The examiner should review the claims file for the pertinent medical and other history, including a complete copy of this remand. The Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655(b). 4. Then readjudicate this claim for a higher rating for the left knee disability in light of the additional evidence. This includes determining whether a separate rating is warranted under DC 5257 for instability of this knee. If additional compensation for this disability is not granted to the Veteran's satisfaction, send him a supplemental statement of the case and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ K. Parakkal 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).