Citation Nr: 1336864 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-32 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from June to September 1980 and May 2003 to April 2004, with Army National Guard service of over 20 years in between. This appeal to the Board of Veterans' Appeals (Board) is from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which among other things denied service connection for a bilateral eye condition and granted service connection for degenerative joint disease of the left knee and assigned an initial disability rating of 10 percent, effective May 1, 2004, the day after his separation from service. The Veteran disagreed with the rating assigned and this appeal ensued. 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 Veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence of a possible increase in disability. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). A review of the record reflects that the Veteran's left knee disability increased in severity since his last VA examination in August 2011. VA treatment records included an August 2011 treatment record in which the Veteran reported that he was having more and more difficulty performing his job. His job required frequent standing, walking, crawling, squatting, climbing, carrying, etc. and all of these activities aggravated his chronic pain and he has at times come near falling due to his knees giving way. The record noted that he was seeking medical retirement. In October 2011, he underwent left knee replacement surgery in October 2011. A July 2013 treatment record noted increased pain in the left knee status for the past month. Given these reports, VA's duty to obtain a new examination as to the current severity of his service-connected left knee disability is triggered. From the record it is not clear whether the Veteran has filed for or is in receipt of Social Security Administration (SSA) disability benefits. If he is in receipt of such benefits, the underlying medical records relating to that claim could be relevant and, so, must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Thus, the Veteran and his attorney should be contacted to clarify whether the Veteran has ever applied for or is in receipt of SSA disability benefits. It does not appear that treatment records associated with the Veteran's October 2011 left knee surgery have been associated with the claims file. Additionally, the record reflects that the Veteran receives ongoing treatment for his left knee at the Tuscaloosa VA Medical Center. Therefore treatment records dated since September 2013 that have not been associated with the Veteran's claims file or Virtual VA eFolder should be obtained. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records of the Veteran's treatment for left knee disability since September 2013 from the Tuscaloosa VA Medical Center and from any other sufficiently identified VA facility. Also obtain any treatment records relating to the Veteran's October 2011 left knee replacement surgery. If any such records are unavailable, the Veteran should be notified of the identity of any records that are unavailable, the efforts VA has undertaken to obtain the records and any further action that may be taken concerning his claims, and he should be notified that he may submit the records himself. All such notification must be documented in the claims file. If the VHA medical records are electronically available in CAPRI, follow current procedures to review and identify VHA medical records pertinent to the disability claims electronically available in CAPRI. Upload to the Virtual VA eFolder the VHA medical records electronically available in CAPRI. 2. Request that the Veteran identify any medical treatment records for a left knee disability and furnish appropriate authorization for the release of private medical records, to include any treatment records relating to his left knee replacement surgery in October 2011. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. 38 C.F.R. § 3.159 (2013). Any negative search response must be noted in the record and communicated to the Veteran. 3. Contact the Veteran and inquire whether he has ever applied for or is in receipt of SSA disability benefits. If the response is positive, any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After the completion of directives 1 through 4 above, the RO/AMC shall schedule the Veteran for appropriate VA orthopedic examination(s) to ascertain the present severity of his service-connected left knee disability. The relevant evidence in the claims file and the Virtual VA eFolder shall be made available to and reviewed by the examiner. All indicated tests should be performed and all findings reported. The examiner is requested to review all pertinent records associated with the claims file, including the Virtual VA eFolder, and offer comments and an opinion as to the severity of the service-connected left knee disabilities. The examiner must conduct all necessary testing of each joint, including range of motion studies (measured in degrees, with normal range of motion specified). The examiner must determine whether there are objective clinical indications of pain or painful motion; weakened movement; premature or excess fatigability; or incoordination. If feasible, these determinations must be expressed in terms of the degree of additional range of motion loss due to such factors. This includes instances when these symptoms "flare-up" or when the respective joint is used repeatedly over a period of time. This determination shall also be portrayed, if feasible, in terms of the degree of additional range of motion loss due to these factors. (The examiner is highly encouraged to estimate the degree of any such additional loss, as a "best guess" is more useful to the Board than a lack of response.) The examiner must specify whether the Veteran has any instability in the respective joints and, if so, the degree thereof (e.g., slight, moderate or severe), and whether there are episodes of locking. The examiner should address whether the Veteran has any left knee scars status post left knee replacement surgery that are deep or cause limitation of motion and cover an area exceeding 6 square inches, superficial without limitation of motion and cover an area of at least 144 square inches, superficial and unstable, or superficial and painful on examination. The VA examiner must also state whether the Veteran's service-connected left knee disability, alone or in concert with his other service-connected disabilities (he is also service-connected for degenerative disc disease o5-S1 with S1 radiculopathy, hypertension, sinusitis with allergic rhinitis, right knee condition, generalized anxiety disorder, compound hyperopic astigmatism and presbyopia, and tinea unguium), renders him unable to secure or follow a substantially gainful occupation. In providing this opinion, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by any nonservice-connected disability. A complete rationale for any opinion expressed should be provided. It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. 5. After completion of the above, review the record to ensure the remand instructions have been completed as directed above. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 6. If the benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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 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). _________________________________________________ J.A. MARKEY 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).