Citation Nr: 1755072 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-01 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating in excess of 30 percent as of December 1, 2009 for service-connected right knee total arthroplasty secondary to postoperative right knee injury with arthritis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for diabetes mellitus was referred to the Agency of Original Jurisdiction (AOJ) by the Board in December 2007. The service connection claim still has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). In August 2015, the Board remanded this claim in order to afford the Veteran a hearing before a member of the Board. In December 2015 and December 2016, the Veteran withdrew his request to appear before a member of the Board. 38 C.F.R. § 20.704(e). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran was last afforded a VA examination for his right knee disability in January 2010, which is approximately eight years ago. In his January 2012 VA Form 9, he indicated that the condition of his right knee disability had worsened. Accordingly, a remand is required in order to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his right knee disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The examiner should test the right knee for pain on both active and passive motion, and in weight-bearing and non weight-bearing. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). Moreover, to the extent possible, the examiner should discuss the Veteran's reports of flare-ups in terms of limitation of motion or provide an explanation as to why an estimation of the motion lost during flare-ups cannot be provided. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Moreover, records of VA treatment have not been associated with the claims file since November 2011. Upon remand, the AOJ should associate outstanding VA treatment records and afford the Veteran an opportunity to identify any relevant private treatment records that remain outstanding. Review of the claims file reveals that the Veteran's complete Social Security Administration disability records are not associated with the claims file. Such records should be sought. See Golz v. Shinseki, 590 F. 3d 1317 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain VA treatment records dated since November 2011. 2. Afford the Veteran an additional opportunity to identify any outstanding private treatment records. The AOJ should then take appropriate steps to associate the identified records with the claims file. Any negative response should be associated with the claims file. 3. The Veteran's Social Security Administration records should be sought. If the records sought are not available, the claims file should be annotated to reflect such and the Veteran should be notified. 4. Then schedule the Veteran for a VA examination to determine the current severity of his right knee disability. Full range of motion testing must be performed where possible. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. The examiner should discuss, if possible, whether the Veteran has chronic residuals consisting of severe painful motion or weakness of the right knee. The right knee should be tested in active motion, passive motion, weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing, concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences and the extent of functional impairment he experiences during a flare-up. The examiner should provide an opinion estimating any additional degree of limited motion caused by functional loss during a flare-up. If the examiner cannot estimate the degree of additional range of motion loss during flare-ups, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Then readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Cynthia M. Bruce 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).