Citation Nr: 1804768 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-21 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for chondromalacia, left knee, status post left lateral meniscectomy with residual scar ("left knee disability"), currently evaluated as 10 percent disabling. 2. Entitlement to a service connection for right knee disability as secondary to left knee disability ("right knee disability"). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1986 to May 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the undersigned Veterans Law Judge in an August 2017 video conference hearing. A transcript of that hearing has been associated with the file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board's review of the record reveals that further development is warranted before the claims on appeal can be decided. During the August 2017 Board hearing, the Veteran testified that his symptoms of his left knee disability have worsened since the last VA examination that took place in August 2014. As such, the evidence indicates that the disability has increased in severity since the last examination and VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his left knee disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). With respect to the Veteran's right knee condition the record indicates that he has a current diagnosis and that it may be causally related to his service connected left knee disability. See October 2017 medical treatment record. As such, a medical opinion is required. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed.Cir.2010); Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir.2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records related to the Veteran's service connected left knee and claimed right knee disabilities. The Veteran should also be afforded the opportunity to identify and/or provide any outstanding private evidence pertinent to his claims. 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left knee disability. The Veteran's electronic claims file should be made available to and reviewed by the examiner. The examiner is asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing for his left knee disability. 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. 3. The AOJ should schedule the Veteran for an appropriate VA examination to determine the etiology of any right knee disability. The Veteran's electronic claims file should be made available to and reviewed by the examiner. The examiner is asked to administer all appropriate testing to determine what the current diagnosis is, with respect to the Veteran's right knee condition. After reviewing the claims file and examining the Veteran, the examiner is asked to offer an opinion as to whether it is at least as likely as not that any diagnosed right knee disability is etiologically related to, or had its onset during, the Veteran's active military service. The examiner should also provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent) that the right knee disability was caused OR aggravated by the Veteran's service-connected disabilities-including his service-connected left knee disability. The examiner should provide a complete rationale for any opinions provided. 4. After completion of the above and any further development deemed necessary by the AOJ, the claims should be re-adjudicated. If any benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ MICHAEL E. KILCOYNE 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).