Citation Nr: 1624025 Decision Date: 06/15/16 Archive Date: 06/29/16 DOCKET NO. 12-03 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for a left knee disability, status-post reconstruction of the anterior cruciate ligament (ACL). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1988 to July 1992. She is in receipt of awards that include the Army Achievement Medal, Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, and Overseas Service Ribbon. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2013, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. In October 2014, the Board remanded this issue to the originating agency. The case has been returned to the Board for further appellate action. The Board has considered whether an inferred claim for a total rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Veteran suggested at her March 2010 VA examination that she had been unemployable since 2000 because of her left knee. However, an August 2010 Report of General Information indicates that the Veteran did not want to claim entitlement to a TDIU due to her left knee. She stated that she wanted her current left knee claim rated first and that she would make a claim for TDIU at a later date. Given the foregoing, the Board finds that the issue of entitlement to a TDIU based on the service-connected left knee disability has not been raised in this case. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). REMAND The Veteran's most recent VA examination of her left knee disability was in February 2015. The Board observes that the report of that examination indicates that there was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was noted to be "not indicated." At her March 2013 hearing, however, the Veteran reported that she had instability and locking of the left knee. She indicated that she experienced locking of the knee about two or three times a month. She also maintained that her knee moved and slipped in and out. The Veteran's testimony indicates that the February 2015 VA examination report is inadequate and that joint stability testing of the Veteran's left knee is required. For this reason, the Board finds that the left knee claim must be remanded for a new VA examination. Finally, the record before the Board includes VA outpatient records from the Charleston, South Carolina, VA Medical Center (VAMC) dated through January 16, 2015. On remand, the RO or the Appeals Management Center (AMC) should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the issue on appeal, to include VA treatment records for the time period from January 2015 to the present and any outstanding private treatment records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the record is developed to the extent possible, afford the Veteran a VA orthopedic examination by an examiner with sufficient expertise to ascertain the current severity and manifestations of her service-connected left knee disability. All pertinent evidence of record should be made available to and reviewed by the examiner, and any indicated studies should be performed. The RO or the AMC should ensure that all information required for rating purposes is provided by the examiner, to include range of motion findings following repetitive testing, as well as a determination as to the extent of any knee instability or subluxation experienced by the Veteran. 3. The RO or the AMC also should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, she and her representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above, this appeal has been advanced on the Board's docket. It also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin 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).