Citation Nr: 18149076 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-33 171 DATE: November 8, 2018 ORDER A timely notice of disagreement regarding an August 2013 rating decision that denied entitlement to service connection for diabetes mellitus was received. A timely notice of disagreement regarding an August 2013 rating decision that denied entitlement to service connection for hypertension was received. REMANDED Entitlement to a rating more than 10 percent for degenerative arthritis, left knee is remanded. Entitlement to a rating more than 10 percent for degenerative arthritis, right knee is remanded. FINDING OF FACT VA received a timely notice of disagreement on September 20, 2013 regarding an August 2013 rating decision that denied entitlement to service connection for diabetes mellitus and hypertension. CONCLUSION OF LAW VA received a timely notice of disagreement regarding an August 2013 rating decision that denied entitlement to service connection for diabetes mellitus and hypertension. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.201 (2014); 38 C.F.R. §§ 20.200, 20.300, 20.302 (2018) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1983 to August 1993. The Board notes that the Veteran’s appeal as to the issues of entitlement to service connection for diabetes mellitus and hypertension was eventually accepted as a new claim, and he has filed a timely appeal for those issues, as well as several additional issues. However, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that a supplemental statement of the case (SSOC) has been provided and the appeal has not yet been certified to the Board. Therefore, those issues will be addressed in a separate Board decision. Importantly, the decision herein will only impact the potential effective date for the issues of entitlement to service connection for diabetes mellitus and hypertension. Whether a timely notice of disagreement was filed with respect to an August 2013 rating decision that denied entitlement to service connection for diabetes mellitus and hypertension. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. There are six elements for a valid notice of disagreement: it must (1) express disagreement with a specific determination of the agency of original jurisdiction; (2) be filed in writing; (3) be filed with the Regional Office (RO); (4) be filed within one year after the date of mailing of notice of the RO decision; (5) be filed by the claimant or the claimant’s authorized representative; and (6) express a desire for Board review. 38 U.S.C. § 7105(b); 38 C.F.R. § 20.201 (2014); Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a notice of disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302(a). The notice of disagreement must be filed with the VA office from which the claimant received notice of the determination unless notice has been received that the applicable VA records have been transferred to another VA office. In that case, the notice of disagreement must be filed with the VA office which has assumed jurisdiction over the applicable records. 38 C.F.R. § 20.300. Here, VA mailed the August 2013 rating decision to the Veteran’s last known address, and there is no indication that it was returned as undeliverable. In September 2013, the Veteran submitted a written statement in which he provided an expression of disagreement with the issues of service connection for diabetes mellitus and hypertension denied in the August 2013 rating decision. The Board finds this statement satisfies the requirements for a valid and timely notice of disagreement received within one year of the August 2013 rating decision. See Gallegos, 283 F.3d at 1314 (This requirement serves administrative efficiency by distinguishing a request for Board review from other routine communications in the wake of a VA decision. Assuming the veteran desires appellate review, meeting the requirement of § 20.201 is not an onerous task.). Hence, in this case, as a timely notice of disagreement was received from the Veteran with regard to the August 2013 rating decision for the issues of service connection for diabetes mellitus and hypertension, the appeal is granted. 38 C.F.R. § 20.201(b). REASONS FOR REMAND Entitlement to a rating more than 10 percent for degenerative arthritis, left knee and right knee The Board acknowledges that the Veteran’s most recent and pertinent VA knee examination took place in January 2016. Since then, review of VA treatment records shows ongoing treatment and worsening symptoms of the knees, to include use of an additional assistive device in July 2017. Further, the United States Court of Appeals for Veterans Claims (Court) has recently held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The January 2016 VA examination report does not include any section for recording ranges of motion on active or passive testing. While the examination report does include a question about weight-bearing, the question only asks about pain, not range of motion. Therefore, the Board finds that additional development is needed to properly adjudicate the appeal, to include obtaining any outstanding VA treatment records and an additional VA examination to ascertain the current severity of the Veteran’s service-connected degenerative arthritis of the left and right knee. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim). The matters are REMANDED for the following actions: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding VA treatment records dated since October 2017 and associate them with the Veteran’s electronic claims file. If the Agency of Original Jurisdiction (AOJ) cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran’s electronic claims file. 2. Thereafter, but whether or not additional treatment records are obtained, schedule the Veteran for a VA examination to evaluate the severity of his degenerative arthritis, left and right knee. The entire claims file must be provided to the examiner for review, and the examination report should reflect that such a review was accomplished. All clinically indicated tests and consultations should be performed and any findings reported in detail, to include bilateral joint testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. The examiner should also indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, instability, and/or incoordination of each knee and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. 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. The examiner must also specifically comment on the Veteran’s lay statements, as applicable. The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel