Citation Nr: 1340544 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-19 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an increased rating for a right knee disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The December 2009 Rating Decision increased the Veteran's disability rating for his right knee disability, from 0 to 10 percent disabling, effective September 15, 2009. The Veteran filed a timely Notice of Disagreement in December 2009. The RO furnished the Veteran with a Statement of the Case in April 2010. The Veteran perfected his appeal with a Form 9 in May 2010. 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 The Board notes that the Veteran was last afforded a VA examination for his right knee disability in November 2009. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Veteran's last examination is unduly remote, and the Veteran has asserted that his current knee disability was not reflected by the VA examination findings. Moreover, there are no other medical evidence on file in which the Board can determine the current severity of his service-connected knee disability. Additionally, while the Veteran denied instability during his VA examination, he indicated in his December 2009 Notice of Disagreement that his knee was very unstable and felt like it would give way. Because there may have been significant changes in the Veteran's condition, the Board finds that a new examination of his right knee is needed to fully and fairly evaluate the Veteran's claim for an increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination of the joints to determine the current severity of his right knee disability. Specifically, the examiner should perform range of motion testing on the right knee and determine whether there is additional limitation of motion due to pain, weakness, fatigability, lack of endurance, or incoordination upon repetitive motion. The examiner should also state whether there is additional loss of motion during time of right knee flare-ups and if so, identify the additional loss of motion during those times. The examiner should also determine whether the Veteran has ankylosis of the right knee. The examiner should additionally indicate whether the Veteran's knee disability is manifested by recurrent subluxation or lateral instability, and if so, describe the manifestations and determine the severity of any subluxation or instability (i.e., whether it is slight, moderate or severe). 2. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 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. OSBORNE 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).