Citation Nr: 1416847 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 06-15 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 30 percent prior to December 16, 2013, and in excess of 40 percent thereafter for service-connected degenerative joint disease of the right knee. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to August 1990. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied a rating in excess of 30 percent for postoperative degenerative joint disease, right knee. During the course of the appeal, in a February 2014 rating decision, the RO increased the rating to 40 percent, effective December 16, 2013. Since the RO did not assign the maximum disability ratings possible, the appeal for higher disability evaluations remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). In December 2012, the Veteran provided testimony at a hearing in Houston, Texas before the undersigned Acting Veterans Law Judge. The record before the Board consists of the Veteran's electronic files known as Virtual VA and VBMS. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). This includes records of the Social Security Administration (SSA), when deemed relevant to the issues on appeal. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran sent a letter in January 2005 stating that he has been on Social Security Disability since August 2002. VA has confirmed that the Veteran receives Social Security benefits. Therefore, the full Social Security records must be obtained. 38 C.F.R. § 3.159 (2013). Also, the Veteran received disability retirement from the Postal Service. He was found was unable to perform his duties as a city letter carrier based on medical documentation from his physician from approximately August 1, 2002; this is indicated in documentation from February 2006. Given this notation, the Board finds that efforts should be made to ensure that any medical documentation held by the Postal Service are obtained. The record also reflects that the Veteran receives treatment for his service-connected knee disability at the Waco VA Medical Center (VAMC). The most recent treatment records from the Waco VAMC in the Veteran's claims file are dated from September 2013. On remand, any updated treatment records from that facility should be obtained. The Board also finds that the May 2012 VA examination is inadequate inasmuch as the examiner indicated that she was not able to test the Veteran's right knee for medial-lateral instability, and did not offer any explanation why she was unable to do so, despite being able to offer opinions on anterior stability and posterior instability. As such, the medical evidence of record is insufficient and the claim must be remanded for a new examination, particularly as there is a question of whether a separate evaluation is warranted for instability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following actions: 1. Request, directly from the Social Security Administration and the Postal Service, copies of any adjudication on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating disability claims. If, after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, notify the Veteran and (a) identify the specific records that are unable to be obtained; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain any existing treatment records from the Waco VAMC for the period from September 2013 to the present. All attempts to fulfill this development should be documented in the claims file. If, after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, notify the Veteran and (a) identify the specific records that are unable to be obtained; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. The Veteran should be afforded a VA orthopedic examination by an examiner with sufficient expertise to evaluate the Veteran's service connected right knee disability. The Virtual claims file must be made available to and reviewed by the examiner. All indicated testing should be accomplished including particularly range of motion testing and whether repetition of motion causes a further decrease in range of motion or increase in pain. The examiner must specifically note at which point in the Veteran's range of motion that pain starts. If ankylosis or cartilage damage is present, this should also be noted. The examiner should also note whether and to what extent, the Veteran has instability or subluxation due to this service connected right knee disability. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to conduct any of the testing, including instability testing, or unable to offer any of the requested opinions, it is essential that the examiner offer a detailed rationale why they are unable to do so. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. Upon readjudication, please determine whether a separate evaluation is warranted for instability. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ A.C. MACKENZIE Acting 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).