Citation Nr: 1753540 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-16 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for degenerative joint disease (DJD) of the bilateral hands. 2. Entitlement to service connection for a heart disability, to include coronary artery disease (CAD). 3. Entitlement to an initial evaluation in excess of 10 percent for right knee status post arthroscopy and unicompartmental arthroplasty prior to November 1, 2014 (excluding periods of temporary total evaluation), and in excess of 30 percent from November 1, 2014. 4. Entitlement to an initial evaluation in excess of 10 percent for DJD of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to March 1981 and October 1982 to March 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the Veteran's service-connected right knee status post arthroscopy and unicompartmental arthroplasty, in a February 2016 Decision Review Officer decision, temporary 100 percent evaluations were assigned from March 27, 2012 to April 30, 2012 and from September 26, 2014 to October 31, 2014 based on surgical or other treatment necessitating convalescence. As the maximum benefit allowable had been granted for those time periods during which a temporary 100 percent evaluation was in effect, these periods are not on appeal. Additionally, the February 2016 decision increased the rating for the right knee to 30 percent, effective November 1, 2014. However, since the RO did not assign the maximum disability rating possible for the entire period of time on appeal, the appeal for higher evaluations for the right knee remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's VA Form 9, Substantive Appeal, also perfected appeals of issues seeking service connection for sinusitis and left knee laceration. However, an April 2016 rating decision awarded service connection for sinusitis and for left knee scars (claimed as left knee laceration). As these awards represent full grants of the benefits sought on appeal, the issues are no longer before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Regarding the Veteran's claim for service connection for DJD of the bilateral hands, the Veteran indicated in his VA Form 9 in June 2012 that he sought treatment from a "Dr. Mackey" in December 2008, who had X-rays taken of his hands and noted arthritic changes. The Veteran also indicated that he was prescribed Mobic for arthritic pain. However, there are no treatment records from this treatment provider in the claims file. Concerning the claim for service connection for a heart disability, the Veteran noted on his June 2012 VA Form 9 that he was a patient of Dr. Kazi for the past five years. While there are records from Dr. Kazi in the claims file, they are only from the month of April 2007. Therefore, it appears that there are outstanding treatment records from this provider. Regarding the claims for increased ratings for the service-connected knee disabilities, the Veteran indicated at his November 2015 VA examination that he was receiving yearly injections in his knees to help with mobilization. The Board notes there are no treatment records in the claims file for the knees since March 2015 (from Middle Georgia Orthopedic Surgery and Sports Medicine). In addition, as the record reflects that the Veteran received treatment through Tricare, all updated Tricare treatment records, if any, should be obtained and associated with the claims file. In light of the above, the Board finds that a remand is necessary to attempt to obtain any additional relevant treatment records. Also, in a June 2015 VA examination report, it was noted that there was evidence of pain with weight bearing of both knees, muscle strength of 4/5 (active movement against some resistance) in the right knee, and no history of lateral instability. Shortly thereafter, in November 2015, the Veteran underwent another VA examination where another examiner provided conflicting information. It was noted that there was no evidence of pain with weight bearing in both knees, normal muscle strength of 5/5 in both knees, and a history of slight lateral instability in both knees. The Veteran's representative, in a July 2017 Appellant's Brief, indicated that the November 2015 VA examination was over 20 months old and that the Veteran currently experiences joint instability of his knees, severe pain on motion, and weakness. As indicated above, there are no treatment records in the claims file reflecting the current severity of the Veteran's knees since March 2015. Given that two years have passed since the last VA examination in November 2015, along with the conflicting information providing in the June 2015 and November 2015 VA examinations, as well as the fact that there are no relevant contemporaneous medical records to document the current severity of the Veteran's knee disabilities; the Board finds that remand for a new VA examination is warranted. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED for the following actions: 1. With any needed assistance from the Veteran, including securing from him VA Form 21-4142, Authorization and Consent to Release Information to VA, obtain the complete private treatment records from any facilities the Veteran identifies having received treatment for his bilateral hand, heart, and knee disabilities, to include Dr. Mackey, Dr. Kazi, and Middle Georgia Orthopedic Surgery and Sports Medicine. Additionally, with any needed assistance from the Veteran, obtain copies of the Veteran's updated Tricare treatment records (since July 2012), if any, and associate them with his claims file. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After any records obtained have been associated with the electronic claims file, schedule the Veteran for a VA orthopedic examination with a clinician with appropriate expertise in order to ascertain the severity of his service-connected right and left knee disabilities and have the results reviewed by an orthopedist. The electronic claims folder must be made available to the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies must be accomplished. The appropriate Disability Benefits Questionnaire(s) (DBQs) should be filled out for this purpose, if possible. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken above, readjudicate the Veteran's claims. If the benefit sought on appeal remains 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 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B (2012). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), only a decision of the Board 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) (2017).