Citation Nr: 1803150 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 10-20 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent right knee patellofemoral syndrome and meniscal tear. 2. Entitlement to an initial evaluation in excess of 10 percent for left knee meniscal tear. 3. Entitlement to an evaluation in excess of 10 percent for lumbar sprain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1986 to October 1986, October 2003 to July 2004, and November 2006 to March 2008. His service included deployments to Southwest Asia and award of the Combat Action Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking a rating in excess of 10 percent for each of his knee disabilities and his lumbar sprain disability. A. Right and Left Knee Disabilities January 2008 VA treatment records reflect that the Veteran reported the need to "pop" his knees after being stationary for a long amount of time. The Veteran was afforded a VA examination in April 2008. No assistive aids were needed for walking, and there were no incapacitating episodes of arthritis. There were no functional limitations on standing or walking. There were no deformities, giving way, instability, stiffness, weakness, episodes of dislocation or subluxation, locking episodes, or effusion. On range of motion testing, flexion measured to 120 degrees with active and passive motion, bilaterally, and pain experienced throughout. Extension measured to 0 degrees with active and passive motion, bilaterally, and pain experienced throughout. The examiner determined that the Veteran's knee disabilities mildly impacted his ability to do chores, exercise, shop and participate in sports, but would not impact his ability to travel, participate in recreation, feed, bath, dress, toilet or groom. May 2008 private treatment records reflect that the Veteran sought treatment for knee pain. An evaluation of each knee revealed no evidence of medial or lateral meniscal tears. There was evidence of mildly thinned patella cartilage, and small joint effusion. September 2009 VA treatment records reflect that the Veteran was receiving physical therapy for both of his knees. On the Veteran's May 2010 VA Form-9, he reported that he was using a knee and back brace. The Veteran submitted a statement in October 2012 in which he reported that his knee conditions had deteriorated and that he had been receiving continuous treatment. B. Lumbar Sprain Disability During the Veteran's April 2008 VA examination, he reported experiencing low back pain, non-radiating. He reported decreased motion, spasms, and a constant, achy, dull pain. Spasms, atrophy, guarding and weakness were not present on examination, but there was evidence of tenderness and pain with motion. The Veteran's posture and gait were normal. Range of motion testing revealed flexion to 80 degrees for active and passive motion, with pain beginning at 50 degrees. May 2008 private treatment records reflect that the Veteran reported low back pain that radiated to his buttocks. An M.R.I. revealed preserved lumbar lordosis without compression, fracture, or listhesis; unremarkable conus medullaris and cauda equine, and no significant degenerative disk disease given the preservation of intervertebral disk spaces. There was also no evidence of focal lumbar soft disk herniation. The M.R.I. did reveal small posterior disk bulge indents in the ventral thecal sac. September 2009 VA treatment records reflect that the Veteran was receiving physical therapy for his back. The Veteran submitted a statement in October 2012 in which he reported that his back condition had deteriorated and that he had been receiving continuous treatment. Additional evidence is needed before the Board can adjudicate the Veteran's claims. It does not appear treatment referenced in the October 2012 statement has been associated with the claims file. The file contains records showing waiver of compensation to receive military pay for fiscal years 2008 through 2011 indicating that the Veteran continued to perform Reserve or National Guard service. Therefore, additional service treatment records may exist and are pertinent to the Veteran's physical capacity for military service including his knee and back disabilities. A request to the National Personnel Records Center and if necessary to the Commonwealth of Puerto Rico Adjutant General for copies of these records is necessary to decide the claims. Additionally, the Veteran's last VA examination for his knees and back took place in April 2008. An examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran's disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). However, because the Veteran stated that his knee and back disabilities have gotten worse since the last evaluation in April 2008, the Board finds that a new examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the electronic claims file. 2. Request from the appropriate national archive or, if necessary, Commonwealth of Puerto Rico National Guard sources copies of service treatment records since 2008 and associate any records received with the electronic claims file. 3. Contact the Veteran to identify whether there are any outstanding private medical records. If there are outstanding records, prepare releases for the Veteran to sign, obtain the records, and associate them with the electronic claims file. 4. Schedule the Veteran for VA examinations by an appropriate examiner to determine the current degree of severity of his service-connected right knee patellofemoral syndrome and meniscal tear, left knee meniscal tear, and lumbar sprain. 5. After completing the requested actions, readjudicate the claims in light of all pertinent evidence. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. The Veteran 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). _________________________________________________ J. W. FRANCIS 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).