Citation Nr: 1518648 Decision Date: 04/30/15 Archive Date: 05/05/15 DOCKET NO. 13-26 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for degenerative joint disease (DJD) of the left knee, currently rated as 10 percent disabling. 2. Entitlement to an increased initial rating for DJD of the right knee status post arthroscopic surgery, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1976 to March 1996. These matters come before the Board of Veterans' Appeals (the Board) from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Initially, the Board notes that there may be outstanding evidence that is pertinent to the Veteran's appeal. On his September 2013 VA Form 9, the Veteran reported that he was going to see an orthopedic physician later that month, but was not able to submit the latest report from the specialist. The most recent VA medical records are dated in May 2012, and the most recent private treatment records are dated in August 2011. Accordingly, a remand is necessary to obtain any outstanding VA and private medical records. The Veteran also reported that his knees had "progressively degenerated," and that he had crumpled to the ground several times because of his condition. See September 2013 VA Form 9. Additionally, the Veteran stated that his knee disabilities were affecting his job and his livelihood. Id. The last VA examination, conducted in June 2011, indicated that the Veteran's stability tests for both knees were within normal limits, and the examiner reported that the Veteran's disabilities did not affect his usual occupation. Thus the Veteran's September 2013 statement suggests his left and right knee disabilities have worsened since the last VA examination. Accordingly, a contemporaneous VA examination is warranted. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following actions: 1. Take appropriate steps to contact the Veteran in order to request that he provide the name and address of any VA or non-VA healthcare provider who has treated him for the left and right knee disabilities since service, including the orthopedic specialist mentioned on his VA Form 9. If, after making reasonable efforts to obtain named non-VA records the AOJ is unable to secure the same, or if after continued efforts to obtain federal 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 could not be obtained; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken 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. Take appropriate action to obtain VA treatment records not already of record relating to the Veteran's treatment for left and right knee disabilities. 3. Then, schedule the Veteran for an appropriate examination to determine the current severity of his service-connected left and right knee disabilities. The claims folder, including a copy of this remand, must be made available to the examiner in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all appropriate protocols for rating knee disabilities. All pertinent pathology found on examination should be noted on the evaluation report. The examiner should express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, to include as a result of pain. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, if feasible. If such is not feasible, the examiner should explain why. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should discuss whether the Veteran exhibits any recurrent subluxation or lateral instability in either knee as a manifestation of the service-connected disabilities and if so provide information concerning the severity thereof. 4. After ensuring the proper completion of the above development and undertaking any other development deemed necessary, the AOJ should review the claims in light of all the evidence of record. If any determination remains adverse, the Veteran must be furnished with a Supplemental Statement of the Case (SSOC) and be given an opportunity to respond. 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). _________________________________________________ S. S. TOTH 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).