Citation Nr: 1647325 Decision Date: 12/20/16 Archive Date: 12/30/16 DOCKET NO. 13-19 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE 1. Entitlement to a rating in excess of 10 percent for postoperative meniscectomy, left knee with degenerative joint disease, from May 25, 2006 to October 10, 2007. 2. Entitlement to a rating in excess of 20 percent for postoperative meniscectomy, left knee with degenerative joint disease, from October 11, 2007 to October 31, 2011 (exclusive of the period from September 13, 2010 to October 31, 2011 during which time a temporary total evaluation was assigned). 3. Entitlement to a rating in excess of 30 percent for left total knee replacement (previously rated as postoperative meniscectomy, with degenerative joint disease), from November 1, 2011. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1975 to August 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction was transferred to the RO in North Little Rock, Arkansas. In the December 2006 rating decision on appeal, the RO continued the 10 percent disability rating assigned to the Veteran's left knee disorder. Shortly thereafter, in a February 2007 rating decision, the RO again continued the 10 disability percent rating. In October 2007, the Veteran requested "reconsideration" of the 10 percent disability rating. Thereafter, in an October 2008 rating decision, the RO increased the disability rating for the left knee disorder to 20 percent, effective October 11, 2007. In November 2008, the Veteran filed a notice of disagreement with the assigned disability rating, but a statement of the case was not issued. In August 2010, the Veteran filed a claim for an increased rating due to surgery, and subsequently submitted VA treatment records which showed that he underwent left total knee replacement surgery in September 2010. In an October 2010 rating decision, the RO awarded a temporary total rating for left total knee replacement from September 13, 2010 to October 31, 2010 pursuant to 38 C.F.R. § 4.30 (2016). The RO also awarded a 100 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, for total left knee replacement, from November 1, 2010 to October 31, 2011, and a 30 percent rating from November 1, 2011. Although the RO considered the October 2010 decision as the proper rating decision on appeal, the Board finds that the current appeal stems from the December 2006 rating decision. The RO failed to construe the October 2007 statement as a notice of disagreement. Accordingly, the correct rating decision is the December 2006 rating decision. See 38 C.F.R. § 20.201 (2016). The Board acknowledges that the case was certified to the Board as a rating reduction case. As mentioned above, the Veteran was granted 100 percent ratings for left total knee replacement pursuant to 38 C.F.R. § 4.30 and 38 C.F.R. § 4.71a, Diagnostic Code 5055, from September 13, 2010 to October 31, 2011. The RO assigned a 30 percent disability rating from November 1, 2011. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2016). The rating reduction was implemented pursuant to 38 C.F.R. § 4.30, and was not subject to the provisions of 38 C.F.R. § 3.105(e). In addition, the June 2013 statement of the case and the September 2016 Board hearing transcript indicated that the claim was for an increased rating. Accordingly, the Board has characterized the Veteran's claim as a claim for an increased rating for total left knee replacement (previously rated as postoperative meniscectomy, with degenerative joint disease). In September 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that his service-connected left knee disorder is more severe than the currently assigned ratings. The Veteran's last VA examination was completed in July 2008. The Veteran reported a history of a left knee surgery during service. He complained of left knee pain, rated at a seven or eight on a scale from one to ten. The pain was treated with tramadol and he used a knee brace. Examination of the left knee revealed painful knee joints, weakness, stiffness, swelling, locking, and fatigability. There was no instability, dislocation or recurrent subluxation. His gait had a left-sided limp. Knee range of motion was to 120 degrees. X-ray showed degenerative joint disease of the bilateral knees. The left knee impacted his activities of daily living, such as walking, bending, and standing. September 2010 VA Treatment records indicated that the Veteran underwent left total knee replacement due to end stage posttraumatic arthritis of the left knee. At the September 2016 Board hearing, the Veteran testified that that the left total knee replacement improved his symptoms, but resulted in a leg discrepancy. Specifically, the surgery lengthened his left leg and he used shoe inserts to even his gait. He stated that his knee symptoms caused moderate discomfort. Private treatment records received in September 2016 documented that the Veteran was issued custom molded shoe inserts to correct a leg length discrepancy. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his service-connected left knee disorder. In this regard, his last VA examination was performed in July 2008. However, since such examination, the Veteran underwent left total knee replacement surgery in September 2010. The Veteran testified that the surgery caused a leg discrepancy. Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121(1991). Additionally, the previous VA examination has been rendered inadequate by the recent holding by the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). The Court in Correia held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, range of motion measurements of the opposite undamaged joint. The aforementioned VA examination report did not specify whether pain was tested in both active and passive motion. The examiners also did not indicate whether pain was tested in both weight-bearing and non-weight-bearing. Consequently, the VA examination report is inadequate and a new VA examination is necessary to determine the current severity of his service-connected left knee disorder, to include whether a leg length discrepancy is present due to the service-connected left knee disorder. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA treatment records. 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. Then, the Veteran should be scheduled for a VA examination to determine the current degree of severity of his service-connected left total knee replacement (previously rated as postoperative meniscectomy, with degenerative joint disease). All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner must provide accurate and fully descriptive assessments of all symptoms and must comment upon the frequency and severity of the Veteran's symptoms in accordance with VA rating criteria. The examiner must provide an opinion as to whether any leg discrepancy was caused by the Veteran's service-connected left knee disorder, to include the left total knee replacement surgery. If so, the examiner must provide all information required for rating purposes, to include, measurement of both lower extremities from anterior spine of the ilium to the internal malleolus of the tibia. The RO should ensure that the examiner provides all information required for rating purposes. In particular, the examination should include testing for pain on both active and passive motion, and with weight-bearing and nonweight-bearing. In addition, the range of motion of the opposite undamaged joint should be documented, if possible. See Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). Also, to the extent possible, the examiner should provide an assessment of the functional impairment during flare ups. If the examiner is unable to do so, the examiner should explain why. 3. The RO or the AMC 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, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, 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 he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. REYNOLDS 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) (2016).