Citation Nr: 1340764 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 12-23 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased initial rating for a right knee disability, currently rated as 10 percent disabling. 2. Entitlement to an increased initial rating for a left knee disability, currently rated as 10 percent disabling. ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to November 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2006 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The May 2006 Rating Decision increased the Veteran's disability rating for his right and left knee disabilities, from 0 to 10 percent disabling for both knees, effective December 1, 2003, and sent notice of the Rating Decision in June 2006. The Veteran filed a timely Notice of Disagreement in June 2007. However, the RO did not treat the Veteran's statement as such and it was never addressed. Then, in June 2009, the Veteran filed another statement expressing his disagreement with his initial rating for his knee disabilities, which the RO treated as a claim for an increased rating. The RO issued a Rating Decision in July 2009, and the Veteran submitted a Notice of Disagreement in June 2010. The RO furnished the Veteran with a Statement of the Case in June 2012, and the Veteran perfected his appeal with a Form 9 in August 2012. The Board notes that, in addition to the paper claims file, there is a paperless, electronic record associated with the Veteran's claims (including Virtual VA and Veterans Benefits Management System (VBMS)). A review of the documents in such file reveals that the documents contained therein are either duplicative or not relevant to the issues 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 The Board notes that the Veteran was afforded a VA examination for his right and left knee disabilities in March 2012. Upon examination, the Veteran's right knee flexion was 140 degrees and his right knee extension was 0 degrees, and there was no objective evidence of painful motion on flexion or extension. The Veteran's left knee flexion was marked at 140 degrees, and his left knee extension was 0 degrees. Again, the examiner noted that there was no objective evidence of painful motion. However, the examiner did not conduct range of motion after repetitive use testing "due to pain." The examiner noted that the Veteran had functional loss due to his knee disabilities, specifically, that the Veteran's pain interfered with sitting, standing, and/or weight-bearing. Unfortunately, the Board is unable to objectively quantify these statements in terms of degrees of additional functional loss. The Board thus seeks clarification as to what extent the Veteran experiences additional functional loss on repetitive motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The examiner is reminded that he should specify the degree of additional functional loss due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. See DeLuca, supra. The Board notes that the Veteran has submitted evidence showing that the symptoms from his service-connected right and left knee disabilities causes him to miss a significant amount of time from work. He has submitted lay statements, a statement from his employer, and the Veteran's leave report for the year of 2009. The Board finds that considerations should be made as to whether referral to the Director of Compensation and Pension is necessary for considerations of the assignment of an extraschedular rating for the period of 2006 to the present. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA joints examination to determine the current severity of his service-connected right and left knee disabilities. The examiner must review the claims folder in conjunction with the examination. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe all symptomatology, to include range of motion of the right and left knees (specifying at what degree in motion pain begins). The examiner should also describe any functional loss pertaining to the service-connected right and left knee disabilities due to pain or weakness, and to document all objective evidence of those symptoms. The examiner is reminded that he should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. The examiner shall also conduct range of motion after repetitive use testing, indicating to what extent the Veteran's knee disabilities interfere with his ability to perform the test and at what point pain occurs. Additionally, the examiner should determine whether the Veteran has ankylosis of the knees; instability or subluxation of the knees; nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in the right or left knee. A complete rationale must be provided for any opinion offered, which should reflect consideration of both the lay and medical evidence of record. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. 2. Given the submitted evidence of the Veteran missing work due to his service-connected right and left knee disability, the agency of original jurisdiction should determine whether referral to the Director of Compensation and Pension Services is warranted for consideration of an extraschedular rating. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then 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). 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. 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) (3) (2013).