Citation Nr: 1336810 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 11-28 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a compensable evaluation for a right knee disability, status-post arthroscopic meniscus repair. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from August 2003 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the paperless claims file reveals a copy of the March 2013 hearing transcript. The remaining documents are either duplicative of the evidence in the paper claims file or they are irrelevant to the issue on appeal. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). In this case, the Veteran was last provided a VA examination in connection with his current claim for an increased evaluation for his service-connected right knee disability in March 2010. The Veteran has contended that the March 2010 VA examination was inadequate. See May 2010 statement; May 2010 notice of disagreement; and hearing transcript, p. 4. Specifically, he reported that the VA examiner did not examine his right knee while he was bearing weight; did not ask him any questions and did not acknowledge his complaints of pain; did not include his complaints of pain during range of motion testing in the examination report; and examined him in a time period of five minutes. In addition, the VA examination was afforded in March 2010, which would have been over three years ago. During the March 2013 hearing, he alleged that his right knee symptoms had increased in severity since the VA examination in March 2010. See hearing transcript, p. 5. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In the May 2010 notice of disagreement, the Veteran stated that he was treated by a primary care physician at the VA Medical Center (VAMC) in Nashville; therefore, he requested a new VA examination at that VAMC. During the March 2013 hearing, he indicated that he preferred to report for another VA examination at the VAMC in Nashville rather than the VAMC in Memphis. See transcript, pp. 5-6. In light of the assertions made by the Veteran, the Board finds that the Veteran should be afforded another examination to ascertain the current severity of his right knee disability. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. In addition, the RO/AMC should obtain and associate with the claims file all outstanding VA treatment records and any identified private treatment records. The Veteran's paper claims file includes VA treatment records dated through March 2010, and the Virtual VA electronic claims file currently includes no VA treatment records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected right knee disability. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. A specific request should also be made for any outstanding VA medical records dated from March 2010 to the present. 2. After completing the preceding development, the Veteran should be afforded a VA examination ascertain the current severity and manifestations of his service-connected right knee disability. If possible, the examination should be scheduled at the VAMC in Nashville, Tennessee. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected right knee disability. The examiner should report all signs and symptoms necessary for rating the Veteran's right knee disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees and indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or, the symptomatic removal of semilunar cartilage. He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of all additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JESSICA J. WILLS 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).