Citation Nr: 1805133 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-47 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veteran's Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2015, the Board remanded the appeal for further development. The Agency of Original Jurisdiction (AOJ) has substantially complied with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, at the time of the Board's October 2015 remand, the Veteran was represented by the Disabled American Veterans. However, in January 2017, he submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, appointing the American Legion as his representative. The Board recognizes this change in representation. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In the October 2015 remand, the Board noted that the May 2015 statement of the case had been returned as undeliverable. The Board directed the AOJ to issue a statement of the case concerning the issue of entitlement to a rating in excess of 10 percent for the Veteran's service-connected right knee disability. In June 2016, the AOJ sent a copy of the May 2015 statement of the case to the Veteran to his last known address. Thereafter, in July 2016, the Veteran submitted a timely substantive appeal. The Veteran's most recent examination to assess the nature and severity of his right knee disability was in August 2013. However, in the November 2017 appellate brief, the Veteran's representative indicated that the Veteran's right knee disability has progressively worsened over time. Also, a February 2015 VA treatment record indicates that the Veteran may need surgery in his right knee. Not only is the last VA examinations remote, but the record indicates that his right knee disability may have worsened since the August 2013 VA examination. As such, the Board finds that a more contemporaneous VA examination is needed to fully and fairly evaluate his claim for a higher rating. Additionally, on remand any updated VA treatment records, dated from July 14, 2015, to the present should be associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, he should be given the opportunity to identify any private treatment records that are pertinent to his claim, and to provide the necessary information in order for the VA to assist him in obtaining these potentially relevant records. See 38 C.F.R. § 3.159(c) (2017). Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA treatment records, dated from July 14, 2015, to the present. 2. The Veteran should also be given an opportunity to identify any private treatment records that are pertinent to his claim. After securing any necessary authorizations from him, obtain all identified treatment records. All reasonable attempts should be made to obtain any identified records. 3. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of his service-connected right knee disability. The electronic record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. As part of the examination, the examiner should conduct range of motion studies on the right knee. The examiner should record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. In so doing, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, or provide an explanation as to why it is not possible to do so. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion and/or extension at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which he experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. The examiner should also address whether the Veteran's right knee disability causes instability or laxity, and whether such is slight, moderate, or severe. 4. After completing the above actions, and any other development deemed necessary, readjudicate the appeal. If a complete grant of all benefits requested is not awarded, a supplemental statement of the case must be provided to the Veteran and his representative that addresses all evidence received since the May 2015 statement of the case was issued. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). _________________________________________________ BETHANY L. BUCK 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).