Citation Nr: 1509636 Decision Date: 03/06/15 Archive Date: 03/17/15 DOCKET NO. 09-09 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an increased rating for left knee patellofemoral syndrome with arthritis, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for right knee patellofemoral syndrome with arthritis, evaluated as 20 percent disabling prior to August 18, 2009. 3. Entitlement to an increased rating for post-operative residuals of a total knee arthroplasty, evaluated as 30 percent disabling from October 1, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1986 to August 1987. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). The case was certified to the Board by the RO in Sioux Falls, South Dakota. Prior to August 18, 2009, the Veteran was receiving a 20 percent rating for a right knee patellofemoral syndrome with degenerative joint disease under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260 (2014). On August 18, 2009, the Veteran underwent a total right knee replacement. The intended effect of such surgery was to ameliorate some difficulties relating to the right knee disability, such as pain due to arthritis. Under the schedule of ratings for the musculoskeletal system, 38 C.F.R. § 4.71a, Diagnostic Code 5055 (knee replacement) is ordinarily intended to replace ratings previously assigned under Diagnostic Code 5010-5260 for the Veteran's right knee disability following replacement. The Board has thus recharacterized the issues as shown on the title page. A 100 percent rating was assigned by the RO following the prosthetic surgery from August 18, 2009 until October 1, 2010. That rating period is not on appeal before the Board. In July 2012, the Board remanded the appeal for development. In August 2013, the Board denied the claims on appeal. The Veteran appealed to the United States Court of Appeals for Veterans' Claims (Court). The Veteran and the Secretary of VA filed a joint motion to vacate the August 2013 Board denial and remand the claim to the Board. The Court approved the joint motion in March 2014, and in July 2014 the Board remanded the issues for further development. This appeal was processed using the Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should include consideration of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In July 2014, the Board remanded these issues in order to obtain the Veteran's VA treatment records and to afford her a new VA examination. The Veteran attended an August 2014 VA examination, at which she stated that she had been recently treated at the Sanford Medical Center emergency room for her knees and was given medication and a knee brace there. The Veteran's VA treatment records show that in July 2014 she reported to her primary care nurse that she had been seen at Sanford Medical Center and that they had performed knee X-rays. A July 2014 VA treatment record also indicates that a fax had been received from Sanford Medical Center containing the notes from her recent ER visit. These notes are not of record. Moreover, no effort has yet been made to obtain any additional records associated with this treatment or the results of the X-rays taken at Sanford Medical Center. As VA is on notice that such records exist, and they may be directly relevant to the issue on appeal, this case must be remanded in order to attempt to obtain these records prior to readjudication. Accordingly, the case is REMANDED for the following action: 1. Contact the Sioux Falls VA Health Care System and request that they provide copies of any records that were faxed to them from the Sanford Medical Center in July 2014. Also obtain all outstanding, pertinent treatment records from the VA Medical Centers in Sioux Falls, South Dakota, Fargo, North Dakota, and Minneapolis, Minnesota since November 2014. All records received should be associated with the claims file. If the AOJ cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Send to the Veteran and her representative a letter requesting that the appellant provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any more recent, relevant private medical records, including the July 2014 emergency treatment records and X-rays from Sanford Medical Center in Sioux Falls, South Dakota. If the Veteran provides a new completed release form authorizing VA to obtain these treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. 3. Thereafter, the AOJ should readjudicate the claims. If any benefit sought is not granted, the appellant and her representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 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 2014). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).