Citation Nr: 1640859 Decision Date: 10/18/16 Archive Date: 11/08/16 DOCKET NO. 13-24 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected degenerative joint disease of the left knee. 2. Entitlement to an initial compensable disability rating for surgical scars of the left lower extremity. ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army January 1988 to July 1991 and had unverified service in the United States Army Reserves from July 1991 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In March 2012, the Veteran was granted service connection for DJD of the left knee and assigned a noncompensable disability rating, effective September 22, 2011. In July 2013, the RO increased the assigned disability rating to 10 percent, effective September 22, 2011. Because the RO did not assign the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). These claims were initially before the Board in May 2015. Then, they were remanded for additional development, to include providing the Veteran with examinations to ascertain the current severity of his claimed conditions. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. REMAND Remand is required to provide the Veteran with another opportunity for an examination. Here, the Veteran was scheduled for an examination regarding the issues on appeal as directed by Board remand in May 2015. No letter to the Veteran notifying him of the date and time of the examination is of file. Administrative regularity is thus not presumed. See Khyn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). A note to the file indicating that an examination is scheduled lists an address on Anita Court. The Veteran failed to appear. The Veteran was then scheduled for an unrelated audiological examination. Again, the file does not appear to contain a letter notifying the Veteran of the time and place of the examination. See Khyn, 716 F.3d 572. The note to the file, however, indicating that an examination is scheduled lists an address on Silver Isles Boulevard. The Veteran failed to appear. In April 2016, the Veteran called in to report that he had mixed up the dates of his audiological evaluation. In June 2016, the Veteran submitted a statement regarding an unrelated claim that contained his current address, which is apparently located on Silver Isle Boulevard. The Board thus finds that it appears the Veteran did not receive notice of his examination. Remand, therefore, is warranted to provide the Veteran with examinations for his left knee and surgical scars of the left lower extremity. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected left lower extremity surgical scars. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner must also address the Veteran's August 2013 statement that he has numbness in his left shin where a skin graft was performed for his ACL replacement. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected left knee disorder. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner must attempt to obtain the same measurements in the opposite limb. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals