Citation Nr: 1333814 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 08-00 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial increased rating for a lumbar spine disability rated 10 percent disabling prior to December 2, 2011, and 20 percent disabling as of December 2, 2011. 2. Entitlement to an initial rating in excess of 10 percent for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 2002 to June 2005 with additional periods of unverified active duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2011, the Board remanded the Veteran's claims for additional development. The Board notes that in a February 2012 statement, the Veteran indicated that he filed a claim for service connection for a throat disability. There is no indication that any claim has been adjudicated since the February 2012 statement and as that claim is referred to the agency of original jurisdiction (AOJ) for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A review of the claims file reveals that a remand is unfortunately once again necessary. The Veteran was last provided VA examinations to assess his service-connected lumbar spine and right knee disabilities in December 2011, almost two years ago. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69 (1995). When available evidence is too old for an adequate rating of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Veteran's most recent VA examinations are stale. The Veteran submitted a statement in February 2012 and indicated that he continued to suffer from pain related to his service-connected disabilities, and suggested a worsening of the disabilities. His representative indicated in an October 2013 informal hearing presentation that the December 2011 VA examination of the Veteran's right knee included conflicting findings with regard to whether the Veteran had pain on movement of the knee. In order to properly adjudicate the increased rating claims, the Veteran should be scheduled for current VA examinations. Additionally, VA outpatient treatment reports dated through May 2012 are associated with the claims file. The Veteran has indicated that he continues to seek treatment for his service-connected disabilities at VA. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claims an attempt to obtain such records should be made. 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA treatment reports dated after May 2012. If the Veteran identifies any other relevant medical records, those records should also be obtained. 2. After obtaining the above records, schedule the Veteran for a VA examination to determine the current severity of his service-connected lumbar spine disability. The examiner must review the claims file and note that review in the report. The examiner should specifically address the following: a) Provide complete ranges of motion of the lumbar spine. b) Provide ranges of motion of the lumbar spine, expressed in degrees. Indicate whether there is any additional loss of range of motion during flare-ups or due to incoordination, fatigability, painful motion, or weakened motion. c) Describe any neurological impairment resulting from the service-connected lumbar spine disability. State what nerve is affected and the severity of any symptoms. d) Indicate whether intervertebral disc disease is present and if so, state the length of time during the past twelve months that the Veteran has had incapacitating episodes due to his service-connected lumbar spine disability. Incapacitating episodes are periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. e) State what impact, if any, the Veteran's lumbar spine disability has on his activities of daily living, including his ability to obtain and maintain employment. 3. After obtaining the above records, schedule the Veteran for a VA examination to determine the current severity of his service-connected right knee disability. The examiner must review the claims file and note that review in the report. The examiner should specifically address the following: a) All necessary tests and studies, including range of motion studies, should be conducted. b) Discuss any weakened movement, excess fatigability with use, incoordination, painful motion, or pain with use or on flare-up, and provide an opinion as to how those factors result in any additional limitation of function. The examiner should specifically address the Veteran's functional loss due to flare ups and offer an opinion as to whether there are additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. c) State whether there is recurrent lateral instability or subluxation and state the severity if found. d) State what impact, if any, the Veteran's right knee disability has on his activities of daily living, including his ability to obtain and maintain employment. 4. Then, readjudicate the claims. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ HARVEY P. ROBERTS 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).