Citation Nr: 1800313 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 15-46 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a combined rating in excess of 10 percent for a right knee disability. 2. Entitlement to a combined rating in excess of 10 percent for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1988 to February 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which continued 10 percent ratings, each, (under Diagnostic Code (Code) 5260), for osteoarthritic changes of the right and left knees. An interim (December 2015) rating decision granted a separate 0 percent rating for limitation of extension of each knee (under Code 5261), effective November 13, 2014. In September 2017, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the record. 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) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part required. REMAND On review of the record, the Board has found that further development of medical evidence is necessary to satisfy VA's duty to assist the Veteran. The Veteran seeks increases in the 10 percent combined (based on a formulation of 10 percent under Code 5260 and 0 percent under Code 5261) ratings, each, assigned for his service-connected left and right knee disabilities He was examined by VA to assess the severity of his knee disabilities in May 2016. At the September 2017 Board hearing, he testified that both knee disabilities have worsened since that examination. In light of the allegation of worsening (which he is competent to observe), a contemporaneous examination to assess the severity of the disabilities is necessary. At the hearing, the Veteran testified that he wears knee braces (ordinarily provided for stability). Review of the record found that on February 2015 VA examination he reported he used a cane ; tests for stability were normal. An April 2015 VA clinical record notes a consult for bilateral J-braces. An April 2016 VA clinical record states, "Knee brace given for support." On May 2016 VA examination, instability tests were again normal. The Veteran's prescriptions for knee braces must be reconciled with the clinical findings of no instability on examinations. Finally, the Veteran receives ongoing VA treatment for his knees. The most recent records of his VA treatment (at the Vancouver, Washington campus, a division of the Portland VA Medical Center (VAMC)) associated with his file are from June 2016 . [The record also shows prior treatment at the Portland VAMC.] Updated records of any such treatment may contain pertinent information, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should secure for the record updated (to the present, those not already associated with the record) complete clinical records of all VA examinations and treatment the Veteran has received for his knees, specifically including records from the Portland, Oregon VAMC and the Vancouver, Washington campus since June 2016. The AOJ should also ask the Veteran to identify the provider(s) of all private evaluations and treatment he has received for his knees since November 2013 (a year prior to his instant claim for increase) and to provide the authorizations necessary for VA to secure for the record complete clinical records of all such evaluations and treatment. The AOJ should secure for the record complete clinical records (those not already associated with the record) from all provider(s) identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. When the development requested above is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current nature and severity of his left and right knee disabilities. The Veteran's record (to include this remand and all records received pursuant to the development sought above) must be reviewed by the examiner in conjunction with the examination. All findings should be described in detail. The findings must include range of motion studies and the examiner should note the degree of any further limitations due to pain, weakness, incoordination, and/or fatigue, with weight bearing and non-weight-bearing, and during flare-ups. The examiner should comment on the impact the knee disabilities have on occupational functioning. The examiner is specifically asked to reconcile the Veteran's prescriptions for knee braces with the clinical findings of no instability on prior examinations. The examiner should include rationale with all opinions. 3. The AOJ should then review the record and readjudicate the claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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 remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).