Citation Nr: 1339256 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 09-20 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for chronic right knee pain, Fabella syndrome. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from September 1995 to November 1996. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted service connection for chronic right knee pain, Fabella syndrome and assigned a 10 percent disability rating, effective June 14, 2007. The Veteran submitted a Notice of Disagreement (NOD) with this determination in May 2008, and timely perfected his appeal in June 2009. 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. The Veteran contends that his right knee disability is worse than the 10 percent disability rating currently assigned. The Veteran was last given a VA examination in November 2007 in order to establish the etiology of his service-right knee disability. In the May 2008 NOD and June 2009 Substantive Appeal, the Veteran reported that he had an elaborate knee brace on his knee and could not get around without a cane or walker. Additionally, his limitations were so bad that he was unable to secure any employment. In this particular case, the November 2007 VA examination is too remote in time to address the current severity of the Veteran's service-connected right knee disability. 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 disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Additionally, as noted above, the Veteran reported in the June 2009 Substantive Appeal that his knee disability was so bad that he applied for Social Security Disability. It is unclear from his statement if he was ever granted disability benefits from Social Security Administration (SSA). Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); Voerth v. West, 13 Vet. App. 117 (1999); Baker v. West, 11 Vet. App. 163 (1998); Hayes v. Brown, 9 Vet. App. 67 (1996); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Diorio v. Nicholson, 20 Vet. App. 193 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, on remand, further development to determine if the Veteran is in receipt of such benefits, and if so, to obtain the Veteran's complete SSA record, is warranted. Lastly, the Board notes that a remand is necessary to obtain any outstanding VA and private treatment records. The Veteran was receiving ongoing treatment at a VA medical facility for his right knee condition. The claims file only contains VA treatment records through March 2010, and private treatment records through September 2006. On the June 2008 Substantive Appeal, the Veteran reported that he was being treated at Mather VA Hospital. Because it appears that there may be outstanding VA medical records after March 2010 and private records after September 2006 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). Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain any of the Veteran's outstanding VA treatment records from March 2010 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The RO/AMC should contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for a right knee disability. After the Veteran has signed the appropriate releases, those records not already associated with the claims file, should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2) Request, from SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 3) 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 loss 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. 4) 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). 5) 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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).