Citation Nr: 1335552 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 06-15 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 30 percent for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. In March 2011, the Veteran testified before a Veterans Law Judge at the RO. A written transcript of that hearing was added to the claims file. This issue was previously presented to the Board in August 2011, at which time it was remanded for additional development. Unfortunately, the Veterans Law Judge who had previously conducted the hearing in this issue is no longer employed at the Board. In August 2012, the Veteran was sent a letter informing him of this, and offered the opportunity to have an additional hearing if he so desired. The Veteran responded that he wished to have another Travel Board hearing. As a result, this claim was remanded for the scheduling of such hearing in September 2012, and the requested hearing was conducted by the undersigned Acting Veterans Law Judge in December 2012. As such, this claim now returns before the Board. 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 Unfortunately, the Board finds that a further remand is warranted in this case. Initially, the Board points out that the Veteran's last examination regarding his right knee appears to have been undertaken in September 2008, over 5 years ago. While the simple passage of time would not necessarily require the scheduling of a new examination, in this case, there is ample evidence of record indicating that the Veteran's knee condition may have increased in severity since that last examination. In the Veteran's hearing testimony before the undersigned Acting Veterans Law Judge in December 2012, the Veteran himself indicated that he felt his symptomatology had increased in his knee since his last examination. Further, VA treatment records show that in 2011, the Veteran underwent a series of injections in the knee to supplement his joint fluid and help relieve pain. Finally, the Board notes that the Veteran indicated in a recent July 2012 statement that he lost employment due to this condition. As such, the Board finds that a further remand is appropriate, so that an accurate determination can be made as to the Veteran's current level of symptomatology due to his service connected right knee disability. In addition, the Veteran should be instructed to provide any further information not already of record which may pertain to his loss of employment due to his service connected right knee disability. The Board regrets the delay in adjudication of the Veteran's claim that a further remand will entail; however, it is necessary to ensure that the Veteran receives all due consideration under the law. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should contact the Veteran and obtain the names and addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who treated him for a right knee disability that have not yet been associated with the claims file, particularly from 2011 to the present. After the Veteran has signed the appropriate releases, all outstanding treatment records should be obtained and associated with the claims folders. All attempts to procure records should be documented in the file. If the RO or the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. It is noted that the Veteran has reported that he lost a job due to this disability, and the Veteran is requested to offer any supporting information regarding this employment termination that is not already of record. 2. The Veteran should be afforded a VA examination by an examiner with sufficient expertise to evaluate the Veteran's service connected right knee disability. The claims file (physical and virtual) must be made available to and reviewed by the examiner. All indicated testing should be accomplished, including particularly range of motion testing, and whether repetition of motion causes a further decrease in range of motion, or increase in pain. The examiner must specifically note at which point in the Veteran's range of motion that pain starts. The examiner should also note whether, and to what extent, the Veteran has instability or subluxation due to this service connected right knee disability. The supporting rationale for all opinions expressed must be provided. 3. Then, after ensuring any other necessary development has been completed, the RO must readjudicate the Veteran's claim, to include a consideration of whether an extraschedular evaluation would be warranted. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A. C. MACKENZIE Acting 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).