Citation Nr: 1801335 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-14 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service-connected right knee arthritis. 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected instability of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Air Force from April 1973 to April 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction of the record has since transferred to the RO in Atlanta, Georgia. The Veteran testified in a Travel Board hearing before a Veterans Law Judge (VLJ) in March 2017 regarding the issues on appeal. A transcript of those proceedings has been associated with the claims file. The Veteran was then scheduled for a videoconference hearing before the undersigned VLJ in October 2017 regarding the same issues on appeal, in which she testified. A transcript of those proceedings has also been associated with the claims file. As there have been two hearings by two separate VLJs on the issues on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the United States Court of Appeals for Veterans Claims (CAVC) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Id. By law, an appeal can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C.A. § 7102(a) (West 2014). Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. Under these circumstances where a "claimant's appeal is assigned to a Board panel in a piecemeal fashion," CAVC held in Arneson that the "claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case." Arneson, 24 Vet. App. at 386. This does not mean that the hearing must be held before every member of the panel at the same time, but rather "only that [the appellant] be afforded the opportunity to be heard...by every panel member who will decide his case." Id. In the present case, the Veteran has not been afforded an opportunity to testify at a third hearing. However, a remand is necessary given the conflicting evidence of record regarding her knee disabilities. Moreover, the Appeals Management Center (AMC) also ordered a new examination to assess the Veteran's knee disabilities in September 2017, but the case was returned to the Board before the examination could be conducted. As a remand is not prejudicial to the Veteran in this case, and does not represent a final determination on the merits, the issues on appeal may be remanded for additional evidentiary development while the Veteran is afforded an opportunity for a third hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's October 2017 hearing testimony conflicts significantly with the August 2017 examination report. The Veteran testified that the instability of her knee was much more serious than considered by the examiner, and that the examiner discounted her expressed symptoms when conducting the examination. She reported difficulty using a restroom due to the condition of her knee, and stated that she could no longer safely drive on highways due to its instability, dislocation and pain. Her private physician recommended the installation of handrails in her bathroom and shower due to the severity of her condition. The examiner, however, noted no history of instability, or instability upon examination. The Veteran also reported regular use of assistive and stabilizing devices. The Veteran and her representative expressed their disagreement with the findings of the examiner in the October 2017 hearing, and asked that another examination be provided after private medical evidence was associated with the record. The Board agrees that these inconsistencies must be reconciled in a new examination with a new examiner. Furthermore, in September 2017, the AMC issued a deferral on the issues in order to obtain a new VA examination to assess the muscle atrophy caused by the Veteran's arthritis documented in the August 2017 examination. Such an examination has not been provided prior to the case returning to the Board. As such, remand is necessary to obtain a new examination. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice pursuant to Arneson v. Shinseki, 24 Vet. App. 379 (2011) and afford her the opportunity to testify in a third hearing before a new VLJ who will render a panel decision on her appeal. If the Veteran elects to testify in a third hearing, schedule a hearing pursuant to her preferences (i.e. Travel Board, videoconference, etc.). 2. Contact the Veteran in order to identify any outstanding private treatment records regarding her service-connected knee disability not already associated with the record. If identified, obtain releases from the Veteran in order to associate those private records with the file. All reasonable attempts must be made to obtain any outstanding private treatment records. 3. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. Make as many requests as are necessary to obtain relevant records, and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 4. Once the aforementioned development is complete, schedule the Veteran for a new VA examination with a new examiner to assess the current nature and severity of her right knee disability. The examiner must review the entire claims file, including a copy of this remand. The examiner must also consider the Veteran's lay reports regarding observable symptoms and functional limitations. The examiner should opine as to the current nature and severity of the Veteran's right knee disability. The examiner must address with specificity the following: (a) The severity of the instability of the knee; (b) The extent of the muscle atrophy related to her arthritis; (c) The Veteran's limitation of both active and passive motion; (d) If there is additional limitation of motion or pain in weight-bearing and non-weight bearing; The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner should also identify what additional information or evidence (if any) may allow for a more definitive opinion. 5. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and her representative an opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ B. MULLINS 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) (2017).