Citation Nr: 1339073 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 09-34 965 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an initial rating in excess of 10 percent for the Veteran's service-connected right knee disability, with mild degenerative disease. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to November 1986. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2008 rating decision in which the RO granted service connection for right knee, mild degenerative disease and assigned an initial 10 percent disability rating, effective June 29, 2006. In October 2008, the Veteran filed a notice of disagreement (NOD) with that decision. The RO issued a statement of the case (SOC) in November 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2009. In June 2011, the RO issued a supplemental statement of the case (SSOC) reflecting the denial of a higher rating. The claims file reflects that the Veteran was previously represented by private attorney Christopher J. Boudi (as reflected in a February 2008 VA Form 21-22a, Appointment of Individual as Claimant's Representative). In May 2010, the attorney withdrew his representation. The Board now recognizes the Veteran as proceeding pro se. In July 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the July 2013 Board hearing, the Veteran indicated that additional issues were also on appeal. The undersigned took testimony on those issues, indicating that it was unclear whether those issues were actually on appeal. Following review of the record, the Board finds that claims for an increased rating claim for right foot bursitis and plantar fasciitis and to reopen a claim for service connection for a back disorder are not now before the Board. The Veteran did not file a NOD following the September 2010 rating decision deciding both issues and that decision thus became final. Also, in regards to the individual unemployability due to service-connected disabilities (TDIU) claim, the Veteran did not file a substantive appeal following the November 2012 SOC on that issue. As such, those three issues are not before the Board. Furthermore, as regards the matters of requests to reopen the claims for service connection for bilateral flat feet and right wrist disorders, which the Veteran also referenced during the July 2013 hearing, the RO issued a rating decision in October 2012 denying those claims. The Veteran has not file a NOD with either issue. As such, those issues are also not before the Board. However, as the Veteran appears to wish to pursue the above claims, referenced during his hearing, these issues are referred to the RO for appropriate action. The Board notes that the RO should consider whether 38 C.F.R. § 3.156(b) is applicable for the claims to reopen, as the Veteran provided new testimony regarding the flat feet and right wrist disorder claims within a year of the October 2012 rating decision. Finally, the Veteran filed a claim for an increased rating for the left knee disability in December 2011. This claim has not yet been addressed by the RO. As such, this matter is not properly before the Board, and is also referred to the RO for appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the appellant's claims. A review of the documents in such folder reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the record reveals that further RO action in this appeal is warranted. The Veteran currently asserts, to include during the July 2013 hearing, that his service-connected right knee disability, with mild degenerative disease, has worsened since his last VA examination in October 2009. During the hearing, he reported that his knee would swell and buckle. To ensure that the record includes sufficient medical evidence to properly evaluate the disability under consideration, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed. See 38 C.F.R. § 5103A (West 2012); 38 C.F.R. § 3.159 (2012); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). Accordingly, the RO should arrange for the Veteran to undergo a VA examination of his right knee, by an appropriate medical professional, at a VA medical facility. The Board notes that the Veteran previously failed to report for an August 2010 VA examination for this disability. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim (as this claim, emanating from a claim for, and award of, service connection (an original claim) will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to the requested examination, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. The claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Chicago, Illinois and Crown Point, Indiana, from March 2008 through May 2010. During the July 2013 hearing, the Veteran reported that he receives treatment for his knee a few times a year from VA. As such, more recent records from these facilities likely exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the 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). Hence, the RO should obtain from the Chicago, Illinois and Crown Point, Indiana VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated from May 2010 to the present, following the current procedures prescribed in 38 C.F.R. § 3.159(c), as regards requests for records from Federal facilities. As for private treatment, in August 2010, the Veteran filed a VA Form 21-4142 authorizing VA to obtain private medical records from the University of Chicago. The RO did not request such records, and the authorization has now expired. Therefore, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization, for it to obtain, any outstanding, pertinent private medical records-particularly, updated authorization to obtain the University of Chicago records referenced above. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claim should include consideration of whether "staged" rating of the Veteran's disability (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson v. West, 12 Vet. App. 119, 126 (1999) is warranted. The ROs adjudication of the claims should include consideration of all applicable rating criteria, to include that considered alternatively, or in addition to, any diagnostic criteria previously considered. The RO should specifically consider and address whether any separate rating(s) for the right knee for instability or any other separate symptomatology is/are warranted, as well as whether any staged rating (assignment of different ratings for distinct period(s) of time based on the facts found) is/are appropriate. Accordingly, these matters are hereby REMANDED for the following actions: 1. Obtain from the Chicago and Crown Point VAMCs all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since May 2010. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the appeal that is not currently of record. specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private medical records-in particular, updated authorization to obtain the University of Chicago records referenced above. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination of his service-connected right knee disability, with mild degenerative disease, by an appropriate medical professional, at a VA medical facility. The Veteran's entire claims file, to include a complete copy of this REMAND, along with copies of pertinent Virtual VA records (if the examiner does not have access) must be made available to the examiner, and the examination report should include discussion of the Veteran's documented history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the right knee (expressed in degrees, with standard ranges provided for comparison purposes). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or in coordination associated with the right knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether there is any lateral instability and/or recurrent subluxation in the knee. If instability is present, the physician should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. The examiner should also provide comment as to whether the record reflects any change(s) in the severity of the right knee disability at any point since June 29, 2006. If so, the examiner should note the approximate date(s) of any such change(s), as well as provide an assessment of the severity of the disability for each date. For each period under consideration, the examiner should fully describe the functional effects of the Veteran's service-connected right knee disability, with mild degenerative disease, on his ability to perform the mental and physical acts required for employment. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of pertinent evidence (to particularly include all evidence added to the claims file since the RO's last adjudication of the claim) and legal authority. 9. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, along with reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).