Citation Nr: 1341271 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-27 690 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee arthritis. 2. Entitlement to a rating in excess of 10 percent for left knee arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1976 to November 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Nashville, Tennessee, VARO that continued 10 percent ratings each for the Veteran's right and left knee arthritis (previously chondromalacia). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The rating decision on appeal was based on an October 2008 VA examination and a November 2008 VA orthopedic treatment note. VA treatment records show that the Veteran has received extensive treatment since for his knee disabilities. Records secured in connection with the rating decision on appeal do not extend beyond 2009 (although records found on Virtual VA, but not sought or considered by the RO in connection with this claim, extend to 2012). Notably, a January 2009 record that was secured by the RO prior to the April 2009 rating decision shows that the Veteran's VA treating physician found the bilateral arthritis to be worsening and characterized it as severe. VA treatment records are constructively of record, and all records of treatment (during the evaluation period) for a disability for which an increased rating is sought are pertinent evidence with respect to a claim for increase. Given the Veteran's allegations of worsening and the lengthy interval since the Veteran was last examined, a contemporaneous examination to evaluate his knees is necessary. Notably, the RO specifically found that the Veteran's right knee meniscus tear is not service connected (the Veteran withdrew his appeal with respect to this matter in July 2008). Consequently, any distinct pathology (and associated impairment) related solely to the meniscal tear cannot be considered in rating the service-connected right knee disability. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify all providers of evaluation or treatment he has received for his bilateral knee arthritis since 2009 and to provide all authorizations necessary for VA to obtain any private records of such treatment. The RO should secure for the record copies of complete clinical records of the evaluation and treatment from all providers identified, to specifically include all VA treatment and evaluations records that are not already associated with the claims file (or in VA's electronic records storage). If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the RO's request for identified records sought, the Veteran must be so notified and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. When the development requested above is completed, the RO should then arrange for an orthopedic examination of the Veteran to assess the current severity of his bilateral knee arthritis. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. The examination should include range of motion studies of both knees, with notation of any further limitations due to pain and/or on use. All functional limitations must be identified. The examiner should note whether there is any pain, weakened movement, excess fatigability, flare-ups, or incoordination of either knee. If any pathology, symptoms, and/or functional impairment are due solely to a right knee meniscal tear, it should be so noted. The examiner should discuss the effect the right and left knees have on the Veteran's daily activities. The examiner should also discuss the functional limitations associated with, and expected impact on employment resulting from, the knee disabilities. The examiner must explain the rationale for all opinions. 3. The RO should then review the record and re-adjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ George R. Senyk 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).