Citation Nr: 1337984 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-18 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for post-operative status, repair right medial collateral ligament of the knee. 2. Entitlement to an initial rating in excess of 10 percent for traumatic arthritis with decreased flexion and pain of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Gladney, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1977. This matter arises before the Board of Veterans' Appeals (Board) from rating decisions in October 2009 and March 2010 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2009, the RO continued a 10 percent disability rating for post-operative status, repair right medial collateral ligament of the knee. The Veteran filed a timely notice of disagreement to that decision. While on appeal, in a March 2010 rating decision, the RO granted service connection for traumatic arthritis with decreased flexion and pain in the right knee with a 10 percent disability rating, effective January 2, 2009. 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 Further development is necessary prior to adjudicating these increased-rating claims for the right knee disabilities on their merits. The Veteran last underwent a VA compensation examination assessing the severity of these knee disabilities in April 2009, more than 4 years ago. The examination report notes the Veteran's right knee range of motion is 0 degrees of extension and 115 degrees of flexion. The examiner noted that the Veteran's knee is painful at the extreme of flexion on range of motion. The Veteran reported experiencing flare ups several times a month for up to two days. There were no notes indicating that his knee locks up or gives way. Outpatient notes from February 2009 to June 2012 regularly document the Veteran's range of motion as 0 - 105 degrees. Furthermore, since March 2010, outpatient notes regularly reflect the Veteran's complaints that his right knee locks up and gives away. In November 2010, the Veteran had x-rays taken of his right knee. The examiner stated that the x-rays showed worsening of symptomatology in comparison to x-rays taken in February 2009. In October 2013, the Veteran's representative asserted the Veteran's ongoing symptomatology. He reiterates the Veteran's chronic pain and flare-ups in his right knee noted during his April 2009 examination. He also contends that the examiner, in April 2009, did not express, in terms of degree, where pain on range of motion begins and ends. As such, the representative believes that the Veteran's disability picture is unclear and the VA should afford the Veteran further assistance in substantiating his claim. The Board has determined that the Veteran needs to be reexamined to reassess the severity of his service-connected right knee disabilities. This is not solely because of the amount of time that has passed since his last VA compensation examination, but, more so, because the subsequently dated evidence mentioned above shows additional complaints and suggests a worsening of these disabilities since the April 2009 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (VA is not obligated to provide another examination based on mere passage of time since an otherwise adequate examination); but see, too, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); and Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). A review of the claims file, including Virtual VA, shows that subsequent to the March 2010 statement of the case, additional evidence concerning the Veteran's right knee was associated with the record. This evidence does not appear to have been considered by the RO as it was not listed in a supplemental statement of the case. This needs to be accomplished prior to an adjudication of the appeal. Additionally, a December 2012 partial rating decision in Virtual VA shows that the Veteran underwent a VA knee examination in August 2012. Although noted, this examination report has not been associated with the Veteran's file. This should be done. A review of the claims file, including Virtual VA, shows that subsequent to the March 2010 statement of the case, additional evidence concerning the Veteran's right knee was associated with the record. This evidence does not appear to have been considered by the RO as it was not listed in a supplemental statement of the case. This needs to be accomplished prior to an adjudication of the appeal. Additionally, a December 2012 partial rating decision in Virtual VA shows that the Veteran underwent a VA knee examination in August 2012. Although noted, this examination report has not been associated with the Veteran's file. This should be done. Accordingly, the case is REMANDED for the following action: 1. Take steps to associate with the record the August 2012 VA knee examination. 2. Schedule an appropriate VA compensation examination to reassess the severity of the service-connected right knee disabilities. All diagnostic testing and evaluation needed to make these determinations should be performed, and all clinical findings reported in detail. After examining the Veteran and reviewing the file, including a complete copy of this remand, the examiner is asked to specifically address the following: a. Identify and describe all symptoms and manifestations attributable to the service-connected right knee disabilities. All necessary diagnostic testing and evaluation should be performed, including testing of the range of motion of the right knee on extension and flexion. b. Indicate whether there is recurrent subluxation or lateral instability of the right knee and, if there is, whether it is slight, moderate, or severe. c. Determine whether the right knee exhibits pain or painful motion, weakened movement, premature or excess fatigability, or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional functional loss, including in terms of what effect, if any, this has on the range of motion of the knees, including during times when these symptoms are most problematic ("flare ups") or during prolonged, repetitive, use of the knees. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). 3. Then readjudicate these increased-rating claims concerning the right knee disabilities, including considering whether the claims should be referred for extra-schedular consideration. If these claims are denied, send the Veteran a supplemental statement of the case (SSOC) which takes into consideration the evidence submitted since the March 2010 statement of the case. Thereafter, give him and his representative time to respond before returning the file to the Board for further appellate consideration. 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 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). _________________________________________________ K.OSBORNE 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).