Citation Nr: 1623175 Decision Date: 06/09/16 Archive Date: 06/21/16 DOCKET NO. 13-36 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for a left knee disability. 2. Entitlement to an evaluation in excess of 10 percent for a right knee disability. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney-At-Law ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from February 1984 to February 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied increased evaluations for left and right knee disabilities. In June 2015, the Board issued a decision denying increased evaluations for the left and right knees, as well as for hemorrhoids. The Veteran appealed the denials with regard to the knees to the Court of Appeals for Veterans Claims (CAVC or the Court), which in January 2016, on the basis of a Joint Motion for Remand, vacated the decisions and remanded the matters to the Board for further consideration. The Veteran did not appeal the decision with regard to hemorrhoids; that decision is final, and no longer before the Board. The Veteran's file has been scanned, and converted from a hybrid paper and electronic file to a purely electronic file. The Board has reviewed the records and documents maintained in Virtual VA (VVA) and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Court found that the Board failed to consider and discuss the actual functional impairment of each knee when the impact of pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion during frequent flare-ups of symptoms reported by the Veteran at his most recent June 2011 hearing. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has reported that since that examination, almost five years ago, he has experienced a worsening of knee symptomatology, and he has described specific manifestations and impairments in support of his reports. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). In light of both the passage of time and the competent and credible evidence of potential worsening, a new examination with updated findings is required. Further, there appear to be outstanding VA treatment records which may include relevant evidence. 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; 38 C.F.R. § 3.159. Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). On remand, updated VA records must be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file updated VA treatment records from the medical center in Durham, North Carolina, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period of April 2011 to the present. 2. Schedule the Veteran for a VA Joints examination. The examiner must describe in detail the current symptoms, manifestations, and functional impairments related to the left and right knee disabilities. The examiner must specifically address the frequency, duration, and severity of flare-ups, as well as their functional impact. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ K. J. ALIBRANDO 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) (2015).