Citation Nr: 1804320 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-20 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to December 10, 2014, and in excess of 20 percent thereafter for service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1987 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board remanded this matter in November 2016 for additional development. The matter is now again before the Board for further appellate action. The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System (VBMS). REMAND Unfortunately, the Board finds further development is required before deciding the Veteran's claim. In November 2016, VA mailed a letter and a copy of the Board's remand for a new VA examination to the Veteran's former address. That same month, VA mailed notice of the scheduled examination to the same address. However, the copy of the Board's remand sent to the Veteran was returned as undeliverable in December 2016. Then, in early January 2017, VA received the Veteran's new address of record. A January 2017 exam inquiry indicates the examination was cancelled because the Veteran was an employee of the medical facility in which the examination had been scheduled. CAPRI record from February 2017 indicates a newly scheduled examination was also cancelled. The reason for this cancellation was that the Veteran failed to show despite being contacted by phone twice. However, there is no indication a written notice of the scheduled examinations was sent to the Veteran's new address of record after VA was notified in January 2017 of the address change. Indeed, even assuming the Veteran had received the November 2016 notice of examination, the record shows that examination was cancelled because the Veteran was an employee of that facility. The record does not contain any evidence that the Veteran was notified in writing of the re-scheduled examination. As such, the matter must be remanded for proper notification and scheduling of the requested VA examination. On remand all relevant ongoing medical records should be obtained. 38 U.S.C. § 5103A (c) (2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If it is deemed any pertinent records do not exist, or that additional attempts to obtain these records would be futile, the record should be annotated to reflect such, to specifically include a formal finding of unavailability, and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e) (2017). 2. Send written notice of the re-scheduled VA examination to the Veteran's correct address of record. Ensure a copy of any written correspondence mailed to the Veteran is associated with the record. 3. Afford the Veteran a VA examination to determine the current degree of severity of his right knee disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing of the right knee, as well as weight-bearing and nonweight-bearing range of motion assessments, with comparison to any opposite undamaged joint. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes any required testing is not necessary, he or she should be directed to clearly explain why that is so. 4. Undertake any other development determined to be warranted, and then readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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 (2014). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).