Citation Nr: 1337448 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-03 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for chondromalacia of the right knee. 2. Entitlement to an evaluation in excess of 10 percent for chondromalacia of the left knee. 3. Entitlement to an initial evaluation in excess of 20 percent for instability of the right knee. 4. Entitlement to an initial evaluation in excess of 20 percent for instability of the left knee. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from July 1976 to August 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the Board at an October 2012 hearing conducted via videoconference. A transcript of the hearing is of record. 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 asserts entitlement to an increased evaluation for his bilateral knee disabilities. In conjunction with his appeal, the Veteran submitted partial VA treatment records dated May 2012; he also testified at the October 2012 Board hearing that he was continuing to receive VA treatment. VA treatment records were last associated with the claims file in October 2010. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive 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). A remand is necessary to allow outstanding VA treatment records to be obtained and associated with the claims file. Further, the Veteran was last provided a VA examination in October 2010. In light of his testimony before the Board, the Board believes a new VA examination would be helpful in evaluating the current severity of his disabilities. The Veteran should be provided such an examination. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, records generated by VA facilities from October 2010, to the present must be obtained. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 2. Schedule the Veteran for a VA examination to determine the current severity of his bilateral knee disabilities. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to perform all required and necessary tests, to include range of motion and stability testing. The examiner must fully describe the current status of the service connected bilateral knee disabilities, specifically commenting on functional range of motion following pain and instability of the bilateral knees. The examiner should also address the impact of the Veteran's bilateral knee disabilities on his occupational functioning, regardless of his current employment status. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ KELLI A. KORDICH Acting 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).