Citation Nr: 1804981 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-23 359A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for right knee degenerative arthritis changes, currently rated at 10 percent disabling prior to September 2009 and rated at 20 percent disabling from September 2009 to May 2017, and entitlement to an increased rating for right total knee replacement from July 2017. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1987 to September 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA) that confirmed and continued a 10 percent disability rating for the Veteran's service-connected right knee degenerative changes and a 20 percent disability rating for his service-connected chondromalacia right patellofemoral joint with right anterior cruciate ligament (ACL) tear, postoperative. In December 2008, the Veteran's representative filed a Notice of Disagreement regarding the Veteran's disability rating for right knee degenerative changes; and, in an April 2010 rating decision, that disability rating was subsequently increased to 20 percent from September 2009. The Veteran's appeal to the Board was certified in June 2011 and, in October 2012, the Board remanded the matter to the RO for a new examination. When the appeal returned to the Board in July 2015, the Board found that the criteria for a disability rating in excess of 10 percent prior to September 2009 and 20 percent thereafter, under Diagnostic Code (DC) 5361, were not met. The Board noted at the outset that the Veteran is also service connected for chondromalacia of the right patellofemoral joint with right ACL tear, but remarked that given the specific matter on appeal, the Board's analysis would only focus on degenerative changes of the right knee. The Veteran appealed to the Court of Appeals for Veterans Claims (the Court) and, in December 2016, the Court found that the Board did not provide an adequate statement of reasons or bases for its decision when it failed to attribute symptoms that it specifically acknowledged (locking, effusion and chronic pain) to either or both of the Veteran's aforementioned right knee disabilities, and when it failed to discuss the applicability of DC 5258 that specifically contemplated those symptoms. The Court explained that absent a discussion or analysis by the Board of those matters, the Court's review was frustrated. On this basis, the Court vacated the Board's decision and remanded the matter back to the Board. Since then, in May 2017, the Veteran underwent a total knee replacement for his right knee. As a result, in a September 2017 rating decision regarding his right knee, the Veteran was assigned a temporary evaluation of 100 percent for the period from May 2017 to July 2017 and an evaluation of 30 percent from July 2017. His right knee disability was reclassified as right total knee replacement (previously rated as chondromalacia right knee status post ACL tear). His prior rating of 20 percent for limitation of extension with right knee degenerative changes was discontinued as of May 2017. Because the Veteran was in receipt of a total disability rating from May 2017 to July 2017, the Board will not address that period on appeal. In light of the fact that the RO appears to have merged the Veteran's right knee disabilities under one rating, the issue has been recharacterized as reflected on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, this claim must be remanded to obtain a VA medical opinion clarifying the nature of the Veteran's right knee disability for the period prior to his right knee replacement in May 2017. VA's duty to assist includes obtaining a medical opinion when it is necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d) (2012). Although there are multiple VA examination reports on file, they do not explicitly address the issues raised by the Court. The examination reports note the Veteran's symptoms of locking, effusion and pain, but they do not attribute them to one of the Veteran's specific right knee disabilities nor do they discuss whether or why such attribution cannot be made. Accordingly, a remand is necessary to obtain a medical opinion concerning these symptoms before the Board can render a decision in accordance with the Court's remand instructions. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i) (2017); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (an opinion is adequate if it is thorough, contemporaneous and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be fully informed). Furthermore, any outstanding VA treatment records should be obtained on remand to address the nature of the Veteran's right knee disability since his total right knee replacement in May 2017. The Veteran should also be provided another opportunity to identify any relevant private treatment records pertaining to any right knee disability, and to furnish VA with the necessary authorization to request private treatment records on his behalf or to submit the records himself. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Contact the Veteran and obtain the provider name, address, and approximate date of treatment for any additional treatment records that he would like VA to obtain. Obtain all records adequately identified by the Veteran, and for which the Veteran has signed the appropriate releases, and associate them with the claims file. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 3. Obtain a VA medical opinion from a medical professional that addresses the question below. The claims file, including a copy of this Remand, must be made available to and reviewed by the medical professional and such review must be noted in the opinion. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The medical professional is asked to retrospectively provide an opinion, to the extent possible, regarding whether and to what extent the Veteran's symptoms of locking, effusion and chronic pain were caused by his service-connected right knee degenerative changes or his service-connected chondromalacia right patellofemoral joint with right ACL tear, for any period prior to his right knee replacement in May 2017. Any opinion offered must be supported by a complete rationale. 4. To help avoid future remand, ensure that all requested actions have been accomplished, to the extent possible, in compliance with this Remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the claim that has been remanded. If any benefit sought in connection with the remanded claim is denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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. _________________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).