Citation Nr: 1804487 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-15 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an evaluation in excess of 10 percent for right knee strain. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1987 to July 1997, and from February 2000 to August 2010. During her period of service, the Veteran earned the Air Force Commendation medal w/ 4 Oak Leaf Clusters, Joint Service Achievement Medal, Air Force outstanding Unit Award w/ 2 Oak Leaf Clusters, National Defense Service Medal w/ 1 Service Star, Global War on Terrorism Service Medal, Air Force Longevity Service Medal w/ 4 Oak Leaf Clusters, United States Air Force Non-Commissioned Officer Professional Military Education Graduate Ribbon, and Air Force Training Ribbon. This matter comes before the Board of Veterans' Appeals (Board) from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in pertinent part, granted entitlement to service connection for right knee strain, evaluated as 10 percent disabling, effective September 1, 2010. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran seeks entitlement to an initial increased disability rating for right knee strain, currently rated 10 percent disabling. When a Veteran claims that her condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). In this case, in her April 2014 substantive appeal, the Veteran indicates an increase in the severity of her symptoms since the most recent VA examination was conducted in September 2010. The Board finds that this is enough to require a new VA examination. As such, a remand for a new VA examination is in order. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to ascertain the current severity and manifestations of her service-connected right knee disability. The examiner should identify and completely describe all current symptomatology, including, but not limited to, whether the Veteran suffers from recurrent subluxation or lateral instability, and if so, whether such symptomatology is most accurately deemed "slight," "moderate," or "severe." Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, private medical records, and the Veteran's own assertions. The examiner should also provide findings as to the range of motion of the right knee, including flexion and extension. Additionally, the examiner must include range of motion testing in the following areas: Active motion; Passive motion; Weight-bearing; and Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the knee is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. 2. The AOJ should review the examination report to ensure that it complies with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 3. After completing the above actions, the Veteran's claim for an increased evaluation of her service-connected right knee disability should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and her representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate 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). _________________________________________________ A. S. CARACCIOLO 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).