Citation Nr: 1804033 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-17 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating disability in excess of 10 percent for right knee degenerative joint disease. 2. Entitlement to a rating disability in excess of 10 percent for left knee degenerative joint disease from December 23, 2011 to September 7, 2017, and in excess of 30 percent for a left total knee arthroplasty from November 1, 2018. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2016. The Veteran's wife was present as a witness. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regrettably, these matters must be remanded for additional development. In May 2016 the Veteran testified at his Board hearing that his bilateral knee disabilities were getting worse. He said that he had been told he would need a knee replacement for both knees. In addition, the Veteran stated that he had to take pain medication every four to six hours and daily activities were limited in duration because his knees would swell. The last VA examination of record is in April 2013 which is nearly five years old. Since the Veteran contends that his bilateral knee disability is getting worse, a new exam is needed. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. 38 C.F.R. § 3.159 (2017); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327(a) (2017). In light of this statement indicating increased severity of the Veteran's service-connected bilateral knee disability, remand is required to afford the Veteran a new VA examination to address the current severity of his condition. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating any VA or private treatment records, if possible. Associate those documents with the Veteran's claims file. 2. After completion of the foregoing, schedule the Veteran for a VA examination to determine the current severity of his service-connected right and left knee disorders. The claims folder and any pertinent medical records should be made available for review by the examiner. The examiner is requested to report complaints and clinical findings in detail and comment on which complaints and clinical findings are associated with the left and right knee disabilities. All appropriate tests and studies, including x-rays and range of motion studies of the left and right knee, reported in degrees, should be accomplished. All findings should be made available to the examiner prior to the completion of his or her report, and all clinical findings should be reported in detail. 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 examiner must render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected left and right knees. If pain on motion is observed, the examiner must indicate the point at which pain begins. In addition, after considering the Veteran's documented medical history and assertions, the examining physician must indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner must identify all impairments affecting the left and right knee. The examiner should specifically indicate whether arthritis is present and, if so, whether this is supported by x-ray findings. The examiner must report whether there is recurrent subluxation or lateral instability of the knees and, if so, whether such is best characterized as "slight," "moderate," or "severe." The examiner should also indicate whether, in the left or right knee, there is ankylosis, dislocation or removal of cartilage, impairment of the tibia or fibula, or genu recurvatum. All examination findings, along with a complete rationale for all opinions expressed, should be set forth in the examination report. 3. Then readjudicate the Veteran's claim. If any benefit remains denied, issue an appropriate SSOC, and give the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran 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 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). _________________________________________________ MICHAEL MARTIN 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).