Citation Nr: 1801302 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-12 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for limited left knee flexion. 2. Entitlement to an initial rating in excess of 10 percent for limited left knee extension. 3. Entitlement to an initial rating in excess of 20 percent for left knee instability. REPRESENTATION Appellant represented by: Michael V. Quatrini, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from February 2004 to July 2006. This case comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which originally had jurisdiction over this appeal, and Pittsburgh, Pennsylvania, to which jurisdiction over this case was transferred and which forwarded the appeal to the Board. The case has a long and complex procedural history which was provided in detail in the Board's March 2015 remand. It will not be repeated here. A Travel Board hearing was held in September 2014 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager paperless claims file associated with the Veteran's claims. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on her part. REMAND The Board remanded the case in March 2015 for additional evidentiary development. This included obtaining a contemporaneous VA examination to determine the severity of the Veteran's left knee disorders. Review of the record shows that additional records were subsequently added to the record. Moreover, VA examination was conducted in November 2016. A supplemental statement of the case (SSOC) was issued in November 2016 denying increased ratings for the service-connected left knee disorders. Subsequently added to the record in March 2017 were additional private records reflecting treatment for left knee conditions following left knee injury in February 2017. There had been a fall with immediate onset of pain and swelling as well as warmth in the left knee. The Veteran endorsed night pain and difficulty with squatting and kneeling since the injury. She returned to the hospital when her symptoms became more severe. X-ray was negative for fracture. Magnetic resonance imaging (MRI) was conducted in March 2017 and showed a partial tear. The Board notes that an SSOC is needed as to these 2017 private treatment records as they are pertinent to the claims at hand. See 38 C.F.R. § 19.31 (2017). Moreover, the Veteran has not specifically waived AOJ consideration of such evidence. In addition, another VA examination should be scheduled as the evidence submitted shows that additional and significant left knee injury has been sustained since the most recent VA evaluation in 2016. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to identify the name(s) and current address(es) of any private treatment providers who have treated her for her left knee disabilities since March 2017. After the Veteran has signed any appropriate releases, all identified pertinent records should be obtained and associated with the claims folder. Attempts to procure records should be documented in the file. If records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and her representative are to then be notified in order to allow the Veteran the opportunity to obtain and submit those records for review. 2. Obtain updated VA treatment records, if any, from all appropriate VA medical centers and/or associated clinics. 3. Thereafter, schedule the Veteran for a VA examination to determine the severity of her left knee disorders. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed. The examiner should identify and describe in detail all manifestations of the Veteran's service-connected left knee disabilities. The examiner should report the range of motion (ROM) of the left knee, in degrees. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). The right knee should also be similarly tested. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination, expressing same in terms of additional limitation of motion, in degrees. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the left knee is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should state whether there is any evidence of recurrent subluxation or lateral instability of the left knee, and if so, to what extent. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. Finally, after undertaking any other development deemed appropriate, adjudicate the increased rating issues as listed on the title page of this decision with consideration of all evidence associated with the record since the November 2016 SSOC was issued. If any benefit sought is not granted, furnish the Veteran and her attorney with a SSOC and afford them an opportunity to respond before the record is returned to the Board for further review, if in order. 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). 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).