Citation Nr: 1512624 Decision Date: 03/25/15 Archive Date: 04/01/15 DOCKET NO. 12-18 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee degenerative joint disease, ACL tear and lateral meniscal tear postoperative [herein right knee disability]. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected left knee degenerative joint disease with lateral meniscal tear and chondroplasty [herein left knee disability]. 3. Entitlement to an initial compensable disability rating for residual scars, right knee [herein right knee scars]. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1987 to June 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This rating decision granted entitlement to service connection for right knee degenerative joint disease and assigned a 10 percent disability rating (under Diagnostic Code 5299-5010) and also granted entitlement to service connection for right knee ACL tear and lateral meniscal tear post-operative and assigned a noncompensable (0 percent) disability rating (under Diagnostic Code 5261). The May 2012 Statement of the Case (SOC) combined these, phrasing the issue on appeal as "[e]valuation of right knee degenerative joint disease, ACL tear and lateral meniscal tear postoperative, currently 10 percent disabling"; the Board will also address the right knee in this manner. The rating decision also granted entitlement to service connection for a left knee disability and assigned a 10 percent disability rating (under Diagnostic Code 5299-5260). The rating decision also granted entitlement to service connection for four right knee scars and assigned noncompensable (0 percent) disability ratings for all four scars. The May 2012 SOC addressed all four right knee scars and therefore all are currently on appeal. Subsequent to the SOC issued in May 2012, the Veteran submitted additional evidence in December 2014, along with a waiver of Agency of Original Jurisdiction (AOJ) review. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Also, a review of the electronic records maintained in the Veterans Benefits Management System (VBMS) was conducted. The issues of entitlement to service connection for left and right hip disabilities, to include as secondary to service-connected right and left knee disabilities, have been raised by the record in the July 2012 VA Form 9 (Appeal to Board of Veterans' Appeals), but have not been adjudicated by the AOJ. See Form 9 (stating that "also from having bad knee's its starting to affect my hips"). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran's most recent VA examination with respect to his service-connected right and left knee disabilities was in January 2010. In a March 2015 Appellant's Brief, the Veteran's representative stated that "[t]he Veteran further asserts that his bilateral knee disabilities has worsened since the last examination." In light of the evidence of record that indicated possible increased severity of the Veteran's service-connected right and left knee disabilities, remand is required to afford the Veteran a new VA examination to address the current severity of these conditions. In addition, in the March 2015 Appellant's Brief, the Veteran's representative stated that the Veteran's right and left knee disabilities must be evaluated separately under Diagnostic Code 5259, which relates to symptomatic removal of semilunar cartilage. On remand, the examiner must address whether any symptoms are attributable to removal of semilunar cartilage. With respect to the Veteran's service-connected right knee scars, as the development request in relation to the Veteran's right knee disability (specifically a new VA examination) may result in additional information relevant to the Veteran's service-connected right knee scars, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the January 2010 examination report noted that the Veteran had four scars on the right knee. A separate paragraph discussing left knee scars (which are not on appeal) referenced these scars not being painful. No discussion was contained in the paragraph on right knee scars regarding whether they were painful. In the Veteran's September 2010 notice of disagreement, the Veteran referenced his right scar as being 10 inches long, "real tender," that it "hurts when you touch it" and that the scar "also goes numb in and out." On his July 2012 Form 9, the Veteran stated he had a "long scar down the front of my knee that hurts a lot when I touch it, and some days its numb, it bothers me all the time." While it appears that in these statements the Veteran was referencing his largest service-connected scar (identified in the January 2010 examination report as 12 centimeters long) as being painful, it is not clear if any of the other service-connected scars are also painful. As such, additional VA examination is required with respect to the Veteran's service-connected right knee scars and the examiner is asked to identify, with any necessary assistance from the Veteran, specifically which of the four service-connected right knee scars are painful. In addition, the service treatment records (STRs) of record appear to have been submitted by the Veteran when he filed his claim in January 2010 while still on active duty (his active duty service ended in June 2010). As such, additional STRs may be available and on remand, they must be obtained. Finally, the Veteran has submitted post-service treatment records from the Portsmouth Naval Medical Center. On remand, the Veteran must be contacted and asked to identify any relevant outstanding post-service medical records; if any are identified, appropriate efforts to obtain such records must be undertaken. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's complete service treatment records. 2. Contact the Veteran and ask him to identify any relevant outstanding post-service medical records; if any are identified, appropriate efforts to obtain such records, including those from the Portsmouth Naval Medical Center, must be undertaken. 3. After completion of the above, afford the Veteran an appropriate VA examination to determine the current severity of his service-connected right and left knee disabilities and right knee scars. All indicated evaluations, studies, and tests deemed necessary must be accomplished and all findings reported in detail. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. For both the Veteran's right and left knees, the examiner must address whether any symptoms are attributable to removal of semilunar cartilage. The examiner must also identify, with any necessary assistance from the Veteran, specifically which of the four service-connected right knee scars are painful. 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ MICHAEL A. PAPPAS 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).