Citation Nr: 1337204 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-27 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for right knee chondromalacia patella. 2. Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia patella. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from February 1982 to February 1985. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2013, the Veteran provided testimony at a Travel Board hearing, conducted in Seattle, Washington, before the undersigned Veterans Law Judge, the transcript of which is of record. During the Travel Board hearing, the Veteran submitted additional evidence. The Veteran waived review of the newly submitted evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2012). The Board will consider all relevant evidence in the adjudication of the appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds it necessary to remand the issues of an increased rating for left knee chondromalacia patella and an increased rating for right knee chondromalacia patella, to the agency of original jurisdiction for additional development and consideration. The Board concludes that the June 2012 VA examination is not adequate for the purpose of adjudicating the Veteran's claims pertaining to an increased rating for his knee disabilities. Another VA examination is necessary because the evidence indicates that the Veteran's knees have worsened since the last VA examination, and the last VA examination is too remote to constitute a contemporaneous examination; thus, a new examination is required. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). See also Weggenmann v. Brown, 5 Vet. App. 281 (1993). Here, the Veteran submitted January 2013 VA magnetic resonance imaging records, subsequent to the June 2012 VA examination, that indicated his right knee had a horizontal tear involving the posterior horn and body of the medial meniscus with an adjacent small perimeniscal cyst. The January 2013 VA records also indicated findings consistent with intrasubstance degeneration with respect to the left knee. Thus, a new examination is required. In March 2013 testimony, the Veteran stated that he received treatment in July 2011 from the University of Washington for pain management based on a VA referral. However, these records are not associated with the claims file. Thus, the necessary authorization should be obtained from the Veteran and any additional records, from the University of Washington, from July 2011, should be attempted to be obtained and associated with the claims folder. 38 C.F.R. § 3.159(c)(1). Also at the March 2013 hearing, the Veteran submitted a December 2012 treatment record from his physical therapist at the Cascade Physical Therapy & Sports Clinic, where the Veteran received treatment based on a VA referral. Thus, the necessary authorization should be obtained from the Veteran and any additional records, from the Cascade Physical Therapy & Sports Clinic, from December 2012, should be attempted to be obtained and associated with the claims folder. 38 C.F.R. § 3.159(c)(1). Additionally, at the March 2013 hearing, the Veteran testified that he had an appointment with an orthopedic surgeon scheduled, in April 2013, related to a right knee cyst. It was not clear if this appointment was with VA or with a private provider. However, if this appointment was with a private provider, then necessary authorization should be obtained from the Veteran and the records, from April 2013, should be obtained and associated with the claims folder. 38 C.F.R. § 3.159(c)(1). Finally, the most recent VA treatment records from the Puget Sound Health Care System are from August 2012, with exception of the January 2013 records the Veteran submitted at the March 2013 hearing. Thus, on remand all relevant VA treatment records should be obtained from the Puget Sound Health Care System, from August 2012 to the present and associated with the claims file. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Accordingly, the case is REMANDED for the following actions: 1. Obtain the necessary authorization from the Veteran and then attempt to obtain records, from the University of Washington Pain Clinic from July 2011, from Cascade Physical Therapy and Sports Clinic from December 2012, and from the April 2013 orthopedic surgeon referenced at the March 2013 hearing, if a private provider, and associate them with the claims folder. All attempts to obtain these records must be documented in the claims file. The RO must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. If no records are obtained, the RO must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 § 505(a), Pub L. 112-154, 126 Stat. 1165 (August 6, 2012) (codified as amended at 38 U.S.C.A. § 5103A(b)(2)(B)). 2. Obtain all VA treatment records for the Veteran from the VA Puget Sound Health Care System and any associated outpatient clinics, dated from August 2012 to the present, and associate them with the claims file. All attempts to obtain those records should be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 3. Thereafter, schedule the Veteran for a VA examination to determine the severity of his right knee and left knee disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The entire claims file should be made available for review in conjunction with the examination. The examiner should take note of the January 2013 and February 2009 VA radiology reports. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected right and left knee disabilities. a. The examiner should determine whether the Veteran has arthritis of either knee, and if so, and whether it is part and parcel of his service-connected knee disability. b. The examiner should report all ranges of motion of the left and right knee, in degrees. The examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the left knee is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. c. The examiner should also determine whether the Veteran has recurrent subluxation or lateral instability of either knee and, if so, its severity. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. The Veteran must be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. Finally, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).