Citation Nr: 1337199 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-20 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome. 2. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral pain syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2000 to September 2005. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). The Virtual VA electronic claims file has been reviewed; a review of the documents reveals that it contains an October 2013 Appellant's Brief pertinent 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 Veteran contends that his service-connected right and left knee patellofemoral pain syndrome warrants initial ratings higher than the 10 percent evaluation for each knee which is currently assigned. After filing a claim for a knee condition in December 2008, the Veteran was afforded an April 2009 VA examination of the bilateral knees. The examiner performed a physical examination, provided range of motion test results, and diagnosed the Veteran with bilateral knee patellofemoral pain syndrome. Unfortunately, this examination report is insufficient for adjudication of the claims on appeal at this time, and the case must be remanded to afford the Veteran a new VA examination. The Veteran stated in May 2010 that he has considerable limitation of use and motion upon repetitive motion and flare-ups in his bilateral knees and that this limitation was not accurately considered by the April 2009 examiner. While the April 2009 examiner stated that there was a "major functional impact" in the range of motion of both the right and left knees due to pain, he did not provide any explanation of how this impact manifested, and then went on to say that there was no additional limitation after repetitive use due to fatigue, weakness, or lack or endurance. It is therefore not clear if the April 2009 VA examiner fully considered whether the Veteran had any additional limitation of function, to include limitation of motion, of his service-connected bilateral knee disability as a result of pain or during flare-ups, as required by the holding of the United States Court of Appeals for Veterans Claims in DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, the Veteran has stated that he has bilateral instability in the knees, but this symptom was not demonstrated to the April 2009 examiner. As separate ratings may be assigned for limitation of knee extension and flexion, as well as for subluxation and lateral instability, such clinically observed symptoms could alter the Veteran's rating assignment, and therefore a more thorough VA examination which discusses all relevant symptoms must be performed. Additionally, the Veteran's representative asserted in the October 2013 Appellant's Brief that the Veteran's symptoms have become more severe than they were at the time of the April 2009 examination. To ensure that the evidence of record reflects the current severity of his service-connected bilateral knee disabilities, a more contemporaneous examination is warranted. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (VA is obligated to provide a new examination when a veteran asserts that the service-connected condition has become more severe.). The RO/AMC should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The Veteran has asserted in a May 2010 statement that he has had periods of severe locking and functional incapacitation, but he has not provided any information regarding medical treatment for these problems. This was not found on the VA examination. As there are currently no medical treatment records associated with the case, the RO/AMC should request that the Veteran provide, or provide any necessary releases for the RO/AMC to obtain, outstanding records of post-service evaluation or treatment. All relevant ongoing medical records should be requested and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159 (2013). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and provide authorization forms for any medical care providers who have treated him for knee disorders, to include whether he has been seen at a VA or service facility. After securing the necessary releases, the RO/AMC should request any relevant records identified and associate them with the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. If he so desires, the appellant may also obtain and submit these records. Of course all records of reported VA treatment should be obtained and this can be done without release forms once identified. 2. Thereafter, arrange for the Veteran to undergo an appropriate VA examination performed by a qualified examiner to determine the severity of the Veteran's bilateral knee patellofemoral pain syndrome. The entire claims file must be provided to the examiner and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests should be accomplished (to include X-rays if necessary), and all clinical findings reported in detail. The physician performing the VA examination should conduct range of motion testing, expressed in degrees. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or in coordination associated with the knees. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the knees due to pain, weakness, stiffness, or locking, and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner must also address whether the Veteran has subluxation or lateral instability of the right or left knee, and to what severity (slight, moderate, or severe), or semilunar or dislocated cartilage of the right or left knee, and how these symptoms manifest. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed. 3. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further adjudication. 5. After completing the requested actions, the RO/AMC should readjudicate the claims in light of all pertinent evidence. If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a supplemental statement of the case, with appropriate time allowed for response. The Board intimates no opinion as to the outcome in this case by the action taken herein The appellant has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ MICHAEL D. LYON 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).