Citation Nr: 1338473 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-33 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an evaluation higher than 10 percent for service-connected degenerative joint disease of the left knee. 2. Entitlement to an evaluation higher than 10 percent for service-connected degenerative joint disease of the right knee with an anterior cruciate ligament tear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from November 1982 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In September 2013, the Board received a VA Form 21-22, Appointment of Individual as Claimant's Representative, in favor of Disabled American Veterans. However, under the provisions of 38 C.F.R. § 20.1304(a) (2013), an appellant is granted a period of 90 days following the mailing of notice that an appeal has been certified to the Board and the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a change in representation. A letter dated February 2012 advised the Veteran that his case was being certified and transferred to the Board. As noted above, in September 2013, well after the expiration of the aforementioned 90-day grace period, the Board received the Veteran's signed VA Form 21- 22. The Board normally cannot accept a request for a change in representation after this 90-day grace period unless good cause is shown in a written motion to account for the delay in the submission of the request. 38 C.F.R. § 20.1304(b) (2013). There was no accompanying explanation as to why this change in representation was not submitted in a timely manner. As a consequence, the request to appoint a new representative is not accepted as part of this appeal, and the appellant is still represented, in this appeal only, as reflected on the title page of this decision. However, the appointment of a new representative is referred to the RO for consideration upon completion of the Board's appellate review. 38 C.F.R. § 20.1304 (2013). A review of the Virtual VA and VBMS paperless claims processing systems does not reveal any additional evidence pertinent to the claim 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 After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Veteran's claims. In his substantive appeal, the Veteran stated that his doctor told him that his injury was not going to get better. However, it is unclear if the Veteran is receiving routine treatment from this doctor or if he was referring to his compensation and pension examination. The RO or AMC should send the Veteran VA Form 21-4142, Authorization and Consent to Release Information, and, if the Veteran returns the form, attempt to obtain the records from the doctor identified. See 38 C.F.R. § 3.159(e)(2) (2013). Also in his substantive appeal, the Veteran provided testimony showing that his service-connected knee disabilities have gotten worse since his last compensation and pension examination in March 2011 and described additional symptoms he experienced. Given the passage of time since his most recent examination and the allegations set forth herein, the Board finds that a new compensation and pension examination would assist the Board in clarifying the extent of the Veteran's knee disabilities and would be instructive with regard to the appropriate disposition of the issue under appellate review. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Thus, this matter must be remanded for a compensation and pension examination to ascertain the current severity of the Veteran's knee disabilities. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VA Form 21-4142, Authorization and Consent to Release Information, and, if the Veteran returns the form, attempt to obtain the medical records from the doctor he identified in his December 2011 substantive appeal. If any records are still not available, make specific note of that fact in the claims file. 2. After the above development has been completed, schedule the Veteran for an appropriate medical examination to determine the nature and extent of any current manifestations of his service-connected knee disabilities. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file and a copy of this remand should be made available for review in connection with the examination, if possible. The examiner should indicate in the report whether the claims file was reviewed. The examiner should distinguish to the extent possible between symptomatology resulting from the Veteran's service-connected knee disabilities and any other nonservice-connected disorders that may be found. If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should state this in the examination report. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. Thereafter, the Veteran's claims of entitlement to higher evaluations for service-connected left and right knee disabilities should be readjudicated. If any benefits sought on appeal remain denied, the Veteran should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ CHERYL L. MASON 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).