Citation Nr: 1336301 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-18 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an evaluation in excess of 10 percent for a left knee condition. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sadia Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1985 to November 1985 and January 1989 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The rating decision denied entitlement to a rating in excess of 10 percent disability evaluation for the Veteran's left knee condition. The Board notes that during an August 2010 VA examination, the Veteran reported being laid off from his job as a licensed elevator inspector but stated that "he can go back to [work] when work returns." Although the United States Court of Appeals for Veterans Claims has held that a claim for total disability rating based on individual unemployability (TDIU) is part of a claim for increased rating when such claim is raised by the record, Rice v. Shinseki, 22 Vet. App. 447 (2009), here, there is no indication or allegation that the Veteran was laid off from his employment as a result of his service-connected left knee condition. Accordingly, a claim for TDIU is not raised by the record. In a May 2013 statement, the Veteran raised claims of entitlement to service connection for a back condition, a right knee condition, and a right foot condition, all as secondary to his service-connected left knee condition. Although the RO, in a November 2012 rating action, denied a claim for service connection for a right knee condition and informed the Veteran of his appellate rights, he has not yet submitted a notice of disagreement. Moreover, the May 2013 statement reflects that he was filing a "new claim" for that disability. As no action has been taken on that claim or the claims for service connection for back and right foot conditions, those issues have been raised by the record, but not adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The issue of an increased evaluation for the Veteran's service-connected left knee condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND In a November 2012 statement, the Veteran reported that his left knee disability had worsened since the most recent examination, which was conducted in August 2010. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his left knee disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. The Board also observes that the Veteran receives both VA and private treatment for his left knee condition. The Veteran has indicated that he received treatment from the Albany Stratton VAMC, documentation of which has not been associated with the claims file. Similarly, the claims file contains a May 2007 private MRI report (Hudson Valley Radiology Associates) reflecting that left knee studies were ordered by a private physician, a Dr. C. Sprague. However, no records from Dr. Sprague appear in the claims file. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding records of VA treatment from the Albany Stratton VAMC and associate them with the record. If no additional records are available, include documentation of the unavailability in the claims file. 2. Afford the Veteran an opportunity to submit any other information that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file, to include, but not limited to: records from Dr. Sprague and Hudson Valley Radiology Associates. Associate any available records with the claims file. Make at least two (2) attempts to obtain records from any private sources. If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession. 3. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed, of the nature, extent, and severity of his left knee condition, which should include whether he has locking or instability of the left knee as well as the impact of his left knee disability on his ability to work. He should be provided an appropriate amount of time to submit this evidence. 4. After associating any pertinent, outstanding records with the claims file, schedule the Veteran for an appropriate VA examination to determine the current nature, extent, and severity of his left knee disability. The claims file should be made available to and reviewed by the examiner, and the examiner must record the Veteran's complaints of pain and/or instability. All appropriate tests and studies should be conducted. All findings and conclusions should be set forth in a legible report. The examiner should address the following: a. Indicate whether the Veteran has any recurrent subluxation or lateral instability and/or episodes of locking, pain. b. Discuss functional impairment of the knee, addressing weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. Any functional impairment should be expressed in degrees of limitation of motion, i.e., the extent of the Veteran's pain-free flexion and extension. 5. Then readjudicate the claim. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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 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). ______________________________________________ STEVEN D. REISS 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 the appeal. 38 C.F.R. § 20.1100(b) (2013). Department of Veterans Affairs