Citation Nr: 1546292 Decision Date: 11/02/15 Archive Date: 11/10/15 DOCKET NO. 13-03 658A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for a right knee condition, to include anterior cruciate ligament (ACL) and medial meniscus tears and osteoarthritis. 2. Entitlement to an initial rating higher than 10 percent for a left knee condition, to include ACL and medial meniscus tears and osteoarthritis. 3. Entitlement to an initial compensable rating for primary insomnia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1990 to July 2010. This appeal to the Board of Veterans' Appeals (Board/BVA) is from August 2010 and April 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The August 2010 decision granted service connection for all three conditions on appeal. The April 2010 decision confirmed and continued the Veteran's 10 percent rating for his left knee condition. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required for the Veteran's claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide them so that he is afforded every possible consideration. In his February 2013 VA Form 9 Substantive Appeal, the Veteran alleged that his knee conditions and insomnia had significantly worsened since his last VA examinations. The record indicates that his right knee and insomnia conditions were last examined in April 2010, while his left knee was last examined in February 2011. Due to the passage of time, as well as the Veteran's competent and credible statements that the severity of these disabilities has increased, he should be provided new VA examinations upon remand. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran a VA compensation examination to assess the current nature and severity of his bilateral knee conditions. The claims file should be made available for review and the examiner should indicate that such review took place. The appropriate Disability Benefit Questionnaire (DBQ) should be completed and all indicated tests and studies performed. All findings should be reported in detail. The examiner should consider the Veteran's statements concerning the effect these conditions have on his ability to exercise, to play with his children, to use stairs, to mow his lawn, and on his employment, contained in detail in the Veteran's February 2013 VA Form 9 Substantive Appeal. In addition, after having considered the Veteran's medical history and assertions, the physician should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use in each knee; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Further, the examiner should indicate whether there is any lateral instability and/or recurrent subluxation of the knees. If instability is shown, the physician should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. In rendering findings with respect to instability and functional impairment during flare-ups and with repeated use, the examiner should consider and discuss the Veteran's lay assertions. 2. Then, schedule the Veteran a new VA mental health compensation examination to assess the current nature and severity of his primary insomnia. The claims file should be made available for review and the examiner should indicate that such review took place. The appropriate DBQ should be completed and all indicated tests and studies performed. All findings should be reported in detail. The examiner should consider the Veteran's statements concerning the increasing social and occupational impairment this condition has caused him, including being sluggish at work and experiencing anxiety, panic attacks, and irritability, contained in detail in the Veteran's February 2013 VA Form 9 Substantive Appeal. 3. Next, review the medical examination reports obtained to ensure that the remand directives have been accomplished, and return the case to the examiner(s) if all questions posed are not answered. 4. Finally, readjudicate the claims on appeal. If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period 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). _________________________________________________ K. Parakkal 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).