Citation Nr: 1337797 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 13-21 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to an initial rating in excess of 10 percent for recurrent left ankle sprains. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 2006 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In March 2013, the RO increased the left ankle disability rating from zero to 10 percent effective the date of service connection and assigned a temporary total evaluation following surgery on January 27, 2012. The assigned 10 percent rating was continued from April 1, 2012. The Veteran has not contended that this satisfies his appeal for an increased rating and this issue remains on appeal. AB v. Brown, 6 Vet. App. 35. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development. Regarding the Veteran's right knee, his service treatment records (STRs) show that he sustained a right knee injury in 2004, prior to service. The Veteran was diagnosed with a medial collateral ligament sprain and underwent arthroscopic surgery in January 2005. His March 2006 enlistment examination revealed clinically normal lower extremities. The Veteran reported his pre-service injury, but no right knee disability was diagnosed at entrance. An April 2010 VA examiner diagnosed the Veteran with a strain and opined that it was less likely as not aggravated beyond natural progress due to service based on the evidence of record. However, no rationale was provided. As such, a remand is necessary to afford the Veteran a new VA examination with an adequate opinion. Regarding the Veteran's left ankle, he was afforded a fee-based examination in April 2010. He subsequently had surgery in January 2012. No examination has been done to assess the severity of his left ankle disability post-surgery. Therefore, a remand is necessary to afford the Veteran a new VA examination to ascertain the current level of this disability. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). The most recent treatment records from the VA Medical Center (VAMC) in Dayton, Ohio are dated in July 2012. Accordingly, on remand, records of any ongoing VA treatment that the Veteran may be receiving should be obtained. Also, the VA records show that the Veteran's left ankle surgery was performed at the Miami Valley Hospital; none of those records have been obtained. On remand, the Veteran's surgery records and any additional private treatment records identified by the Veteran should be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of right knee and left ankle treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the Dayton VAMC, from the Miami Valley Hospital, and from any other private physicians identified by the Veteran. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, afford the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed right knee disorder that he may have as well as the current level of severity of his service-connected recurrent left ankle sprains. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. A) Regarding the right knee, the examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether the pre-existing medial collateral ligament sprain underwent a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disease? If the Veteran is diagnosed with any other right knee disorder besides the pre-existing strain, the examiner should opine as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that such disorder shown on examination had its clinical onset during service or is otherwise related to service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. B) Regarding the left ankle, all pertinent manifestations of the service-connected left ankle disability should be annotated in the examination report. In particular, the examiner should undertake range of motion studies of the Veteran's left ankle and comment on the degree of disability due to functional losses such as pain and weakness. The examiner should opine as to whether any limitation of motion is best characterized as marked or moderate. The examiner should also note the presence of any ankylosis or deformity (including malunion) associated with this disability. Also, the examiner should discuss the extent of any loss of function in daily activities, including work and physical activity due to the service-connected left ankle disability. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Then, readjudicate the issues on appeal. If any benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran 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). _________________________________________________ MICHAEL MARTIN 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).