Citation Nr: 1806696 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-35 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 20 percent for arthritis of the left knee status post internal derangement. 2. Entitlement to a rating in excess of 10 percent for osteoarthritis of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In February 2015, the Board remanded the case for further development. In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The medical evidence of record shows that the Veteran underwent a total left knee replacement surgery on June 16, 2017. During his November 2017 Board hearing, the Veteran testified that since the surgery, the severity of his bilateral knee symptoms have increased; specifically, the range of motion and stability have worsened and it is definitely more difficult to use stairs now. The Veteran is entitled to new VA examinations where there is evidence, including his statements, that his service-connected disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey, 6 Vet. App. at 381. Accordingly, a more contemporaneous VA examination is required to provide a current picture of the Veteran's service-connected bilateral knee disability at issue on appeal. 38 C.F.R. §§ 3.326, 3.327 (2017). Additionally, the Veteran's service-connected left knee arthritis status post internal derangement is evaluated as 20 percent disabling from August 4, 1980. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260 (2017). He filed a claim for a temporary total rating under 38 C.F.R. § 4.30 in July 2017. In light of the June 2017 surgery, consideration should be given to assigning a rating under 38 C.F.R. § 4.71a, Diagnostic Code 5055, which pertains to knee replacements. Therefore, a remand is necessary in order for the RO to consider the propriety of assigning a temporary total rating for convalescence under 38 C.F.R. § 4.30 and the applicability of Diagnostic Code 5055. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any updated VA treatment records, since November 2017, from the VA Medical Center in New York, New York, to include all associated outpatient clinics, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. 2. The Veteran should be scheduled for an appropriate VA examination so as to determine the current the nature and extent of all impairment due to the service-connected left and right knee disabilities. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's bilateral knee disabilities. The examiner must test and record the range of motion for both knees in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. Additionally, the examiner should determine whether the Veteran has ankylosis of the knees; instability or subluxation of the knees; nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in the knees. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. After completing the above actions, the RO must readjudicate the Veteran's claims on appeal, taking into consideration all newly acquired evidence associated with the claims file. In the readjudication of such claims, the RO should consider the propriety of assigning a temporary total rating for convalescence under 38 C.F.R. § 4.30 and the applicability of Diagnostic Code 5055 in light of the Veteran's June 2017 total left knee replacement surgery. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran, which must address all of the evidence of record since that issue was last adjudicated by the RO. 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 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). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).