Citation Nr: 1338202 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 09-29 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for a right knee strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from September 1982 to August 1984, December 1990 to July 1991, and February 2003 to April 2004. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which continued a noncompensable disability rating for the Veteran's service-connected right knee strain. The Veteran submitted a Notice of Disagreement (NOD) with this determination in June 2008, and timely perfected his appeal in August 2009. Subsequently, in an April 2010 rating decision, the RO increased the Veteran's disability for a right knee strain to 10 percent, effective September 27, 2006. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant 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 A review of the record discloses further development is necessary prior to the adjudication of the Veteran's increased rating claim for a right knee disability. Initially, the Board notes that a remand is necessary to obtain any outstanding VA treatment records. The Veteran was receiving ongoing treatment at the VA for his right knee condition. The claims file only contains VA treatment records through October 2009. Because it appears that there may be outstanding VA medical records after October 2009 that may contain information pertinent to his claim, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Veteran contends that his right knee strain is worse than the disability rating currently assigned. The Veteran was last given a VA examination in October 2009 in order to establish the severity of his service-right knee strain. In this particular case, the October 2009 VA examination is too remote in time to address the current severity of the Veteran's service-connected right knee strain. See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his right knee strain. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain any of the Veteran's outstanding VA treatment records from October 2009 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. 2) After the foregoing, the Veteran should be scheduled for a VA examination to determine the current level of severity of his right knee disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary testing should be performed, to include x-rays. The examiner should write a comprehensive report discussing the current severity of the Veteran's right knee disability. All necessary testing should be provided, including range of motion tests on extension and flexion. The examiner should also be asked to determine whether the right knee exhibits weakened movement, excess fatigability, instability, or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost due to any weakened movement, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202 (1995). Additionally, the examiner should specifically state if the Veteran has any recurrent subluxation or lateral instability of the right knee and, if so, whether those symptoms are slight, moderate, or severe. Furthermore, the examiner should state whether the Veteran has any ankylosis of the right knee. In addition, the examiner should state if the Veteran has dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Additionally, the examiner should state if the Veteran has symptomatic removal of semilunar cartilage. The examiner should also state whether the Veteran has impairment of the tibia and fibula and, if so, describe the impairment. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) Following the completion of the foregoing, the AMC should readjudicate the Veteran's claim. The AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ WAYNE M. BRAEUER 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).