Citation Nr: 1804313 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 06-01 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for a service-connected left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2009, the Veteran presented testimony at a Board videoconference hearing conducted before a Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. The Board remanded the Veteran's claim to the agency of original jurisdiction (AOJ) for additional development in January 2010. The requested development was completed and the case was returned to the Board for appellate consideration. Thereafter, in a decision issued in August 2011, the Board denied the Veteran's claim on appeal. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013), the Board's August 2011 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ who conducted the December 2009 hearing. In order to remedy any such potential error, the Board sent the Veteran letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, the Veteran requested to have the prior decision vacated and a new one issued in its place after another Board hearing was conducted. In June 2014, the Board vacated the denial of an initial disability rating in excess of 10 percent for the left knee disability. The Veteran also appeared for a Board hearing in Washington, D.C., before a VLJ in October 2014. A copy of the hearing transcript has been associated with the claims files. The Board again remanded the Veteran's claim to the AOJ for additional development in January 2015. In April 2016, the Veteran was notified that the VLJ who presided over his Board hearings was unavailable to participate in deciding his appeal. Therefore, he was offered an opportunity for a new hearing before a VLJ who would decide his appeal. In May 2016, the Veteran responded that he did not want to appear at another Board hearing. The Board once again remanded the Veteran's claim to the AOJ for additional development in July 2016 and June 2017. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the delay, the Veteran's claim for entitlement to an initial rating in excess of 10 percent for a left knee disability is again remanded for further development in accordance with VA's duty to assist. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration. In a May 2017 correspondence, the Veteran's stipulated that his left knee disability has worsened since his last VA examination in October 2016. See May 2017 Correspondence (stating that the Veteran's knee has gotten worse and has to remain bent at all times); May 2017 Doctor's note (reporting that knee replacement is being considered for the left knee); October 2017 Correspondence (noting the Veteran's knee has worsened based on his April 24, 2017 x-ray results). Accordingly, given the suggestion that the Veteran's disability picture has changed, a new VA examination is warranted to assess the current level of severity of his service-connected left knee disability. See 38 C.F.R. § 3.327(a) (2017) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); Olsen, 3 Vet. App. at 482; Proscelle v. Derwinski, 2 Vet. App. at 632; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any outstanding VA treatment records dated from April 2017. 2. Thereafter, arrange for a new VA examination to assess the current severity of the Veteran's left knee disability. The Veteran's entire claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. Range of motion testing in accordance with Correia. In the examination report, the examiner must include all of the following: (a) Active range of motion testing results. (b) Passive range of motion testing results. (c) Weightbearing range of motion testing results. (d) Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. Flare-ups (Sharp): The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, whether favorable or unfavorable, and citing the objective medical findings leading to the conclusions. 3. Finally, after completing the above actions and any other development that may be warranted, readjudicate the claims on appeal based on the additional evidence of record. If any of the benefits remain denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ H.M. WALKER 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).