Citation Nr: 1336133 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 06-02 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of right knee surgery. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to December 1991. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which continued the 10 percent rating assigned for service-connected residuals of right knee surgery. The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in December 2008. A transcript is of record. The Board remanded the claim in July 2009 for additional development. After the requested development had been completed, the Board issued a decision in June 2011 in which it determined that a rating in excess of 10 percent was not warranted prior to January 25, 2005, and between July 24, 2006, and December 14, 2006. The Board determined that a 20 percent rating was warranted between January 25, 2005, and July 23, 2006, and again beginning December 15, 2006. The Veteran appealed the Board's June 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2013 memorandum decision, the Court affirmed the Board's determination that the Veteran was not entitled to a temporary total rating following an April 2006 right knee surgery, but vacated the remainder of the Board's June 2011 decision and remanded the claim to the Board for further development and readjudication consistent with the memorandum decision. In September 2013, the Veteran submitted a VA Form 21-4138 on which she wrote "To support my pending appeal enclosed are medical evidence from The Allergy Partners of Raleigh along with VA Form 21-4142." Review of the records enclosed reveal that none are pertinent to the issue pending before the Board on appeal, namely whether a rating in excess of 10 percent is warranted for the service-connected residuals of right knee surgery. This matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 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 Court's January 2013 memorandum decision determined, in pertinent part, that remand was required for VA to provide the Veteran with a VA examination that addresses whether she experiences additional functional loss due to flareups. As the claim is being remanded for the foregoing reason, additional VA treatment records should be obtained and efforts should be made to obtain records from the Bone and Joint Surgery Clinic dated from 2005 to the present, as identified in an undated VA Form 21-4142 submitted directly to the Board in July 2013. The Veteran is hereby notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the VA Medical Center in Durham, North Carolina, dated since March 2010. 2. Make arrangements to obtain the Veteran's records from the Bone and Joint Surgery Clinic dated from 2005 to the present, as identified in an undated VA Form 21-4142 submitted directly to the Board in July 2013. 3. When the VA and private records have been obtained, schedule the Veteran for an appropriate VA examination to evaluate the nature, extent and severity of her service-connected right knee disability. The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. Contemporaneous imaging of the Veteran's right knee must be performed. The examiner is to identify all residuals attributable to the Veteran's service-connected right knee disability. The examiner is to report the range of motion measurements for the right knee in degrees. Any pain, weakened movement, excess fatigability or incoordination on movement must be noted, and whether there is likely to be additional range of motion loss due to any of the following must be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is to describe whether pain significantly limits functional ability during flare-ups or when the right knee is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner is also asked to provide a retrospective opinion as to whether there was additional functional loss (i.e., pain, weakened movement, excess fatigability or incoordination on movement) due to the right knee flareups described by the Veteran during the VA joints examinations dated: * November 2005 ("She has flares of throbbing pain every couple weeks lasting a day or two, severe. She has missed work about one day per month related to her knee. During the flares, she can bend her knee, but the pain is "excruciating.""); * December 2006 ("She has flares of throbbing pain whenever she is driving, which she has to do in her work. Several times per week, mild to moderate, lasting hours, without LOM. Frequent swelling, stiffness. No giving out."); and * February 2010 ("Veteran's occupation is a tax auditor, therefore she has to routinely (every 2-3 weeks) go driving to find people and exam property, when she does this her knee pain escalates (often waking her at night) until 1-2 days have passed, during those exacerbations she will ice event at work to alleviate the pain. Elevates and usually works at home so she can treat her knee."). If the examiner cannot provide the requested retrospective opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must discuss each of the following: * whether there is any evidence of right knee ankylosis; * whether there is any recurrent subluxation or lateral instability involving the right knee, and, if so, to what extent; * whether there is any impairment of the right tibia/fibula (to include whether there is any knee or ankle disability and, if so, whether it is slight, moderate or marked). The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Finally, readjudicate the claim, and consider whether staged ratings or multiple ratings under different diagnostic codes are proper. If any benefit sought on appeal remains denied, furnish the Veteran and her representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant 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 or by the Court 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).