Citation Nr: 1801631 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-10 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease (right knee disability). 2. Entitlement to a rating in excess of 10 percent for left knee chondromalacia (left knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jasmin C. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1973 to April 1993. Her awards and decorations included the National Defense Service Medal with Bronze Service Star, Overseas Service Ribbon, Army Good Conduct Medal, and Army Commendation Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO). In September 2017, the Veteran testified before the undersigned at a video conference hearing. A copy of the transcript has been associated with the claims file. 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 with respect to the claims on appeal and that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In a Notice of Disagreement received in December 2012, the Veteran reported that her knees had "gotten worse." Additionally, in a VA Form 9 Appeal dated March 2014, the Veteran stated that she is unable to walk long distances without pain in one or both of her knees. She further stated that her left knee remained swollen a year after her orthoscopic surgery, and her knee pain causes limping and wakes her from sleep. The Veteran testified before the undersigned in a video hearing in September 2017 and stated that her left knee pain was worse than her right knee. She also reported locking of the left knee and pain that goes down each of her legs. Additionally, the Veteran stated she constantly rubs her legs and has to walk sideways at times. The Veteran was afforded a DBQ examination for her knee disabilities in September 2012, and the examination was adequate for rating purposes at that time. However, this examination is unduly remote, as it is over 5 years old. The Board is unable to determine the current severity of the Veteran's service-connected knee disabilities, and concludes that a remand is needed to afford the Veteran an opportunity to undergo an updated VA examination to assess the current nature, extent, and severity of these disabilities and to obtain any outstanding VA treatment records. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (noting that an examination too remote for rating purposes cannot be considered "contemporaneous"); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.159(c)(2) (2017); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, the Veteran should also be offered the opportunity to submit any private treatment records in support of her claims. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of her claims. 2. Schedule the Veteran for an appropriate examination to address the current severity of her right and left knee disabilities. The Veteran's claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such a review was accomplished. The examiner must address the severity and effects of the Veteran's disability. In particular, the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If unable to conduct any testing, please indicate the reason why. Ask the Veteran to describe her everyday symptoms and symptoms during a flare. The examiner is required to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. 3. Thereafter, readjudicate the issues on appeal. If the benefits sought remain denied, provide the Veteran with a supplemental statement of the case, and afford her a reasonable opportunity to respond before the file is returned to the Board for further consideration. 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. §§ 5109B, 7112 (2012). _________________________________________________ JENNIFER HWA 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).