Citation Nr: 1340164	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  11-24 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to a rating higher than 10 percent for the service-connected left knee disability.

2.  Entitlement to a rating higher than 10 percent for the service-connected left thumb disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

The Veteran served on active duty from August 1989 to August 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York that in relevant part continued current 10 percent ratings for the service-connected disabilities of the left knee and left thumb.

The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in May 2012.  A transcript of his testimony is of record.

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 on his part.


REMAND

The Veteran's most recent VA examination was performed in July 2011.  During his videoconference hearing in May 2012 the Veteran's service representative asserted the Veteran's disabilities have increased in severity since that examination.  The Board therefore finds the Veteran should be afforded a new VA examination before the appeal for increased rating is adjudicated.  38 C.F.R. § 3.159(c)(4) (2013).

During his videoconference hearing the Veteran also described receiving ongoing medical treatment at the Western New York VA Medical Center (VAMC) in Buffalo, New York, but no VA treatment records are in the claims file.  Outstanding relevant VA records should be requested while the case is in remand.  See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).  

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his left knee and/or left thumb disabilities.  After securing the necessary release, the RO/AMC should request any relevant records identified.  In addition, relevant VA treatment records should be obtained.  All treatment records so acquired should be associated with the claim file or with Virtual VA/VBMS.

2.  After the above has been completed to the extent possible, the Veteran should be afforded VA examination of his left knee and left thumb to determine the current nature and severity of his service-connected disabilities.  The claims folder must be made available to and reviewed by the examiner, and any indicated diagnostic studies should be performed, to include range of motion studies.  All symptomatology associated with the service connected left knee and left thumb should be reported. 

3.  Then, the RO/AMC should readjudicate the issues on appeal.  If the benefit sought on appeal remains denied, then RO/AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

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. 2013).



_________________________________________________
K. A. BANFIELD
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).