Citation Nr: 1807782 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-17 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for status post-operative anterior cruciate ligament reconstruction with reconstruction of the lateral patellar retinacular of the right knee with degenerative arthritis and a residual scar. 2. Entitlement to an evaluation in excess of 20 percent for instability of the right knee. 3. Entitlement to an evaluation in excess of 10 percent for limitation of extension of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to November 1989. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In a January 2014 decision, the RO granted separate ratings of 20 percent for instability of the right knee and 10 percent for limitation of extension of the right knee, effective September 22, 2008. In January 2015 and June 2017, the Board remanded the issues to the agency of original jurisdiction (AOJ) for additional development. In December 2017, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing; a transcript of the hearing is of record. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of a claim for an increased rating when such claim is expressly raised by the veteran or reasonably raised by the record. Here, as will be explained in further detail below, the Veteran contends that she is unable to work due, in part, to her service-connected right knee disability. Therefore, the Board has jurisdiction over this issue as part and parcel of her claim for an increased ratings and has listed such on the title page. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The record shows that the most recent examination to assess the nature and severity of the Veteran's service-connected right knee disability was in April 2015. However, during her December 2017 hearing, the Veteran testified that her condition had worsened since her most recent examination. See December 2017 Hearing Transcript, p. 10. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggerman v. Brown, 5 Vet. App. 281 (1993). Not only is this last examination remote, but the Veteran claims that her condition has worsened. Given the foregoing, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating for her service-connected right knee disability. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Finally, as noted in the Introduction, a claim of entitlement to a TDIU has been raised by the record. For example, in December 2017, the Veteran filed a formal claim for a TDIU, alleging that her service-connected right knee disability, in part, rendered her unable to work. Thus, the issue of entitlement to a TDIU has been raised in connection with her increased rating claim. See Rice, supra. On remand, the AOJ should adjudicate this matter in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). The AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through December 1, 2017, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file any VA treatment records dated from December 1, 2017, to the present. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of her 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 she 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. The examiner should also address the functional effects, to include any limitations, that the Veteran's right knee disability has on her activities of daily living, to include employment. In addressing such inquiries, the examiner should take into consideration all of the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles and objective medical findings. A complete medical rationale for all opinions expressed must be provided. 5. Thereafter, and after any further development deemed necessary, entitlement to an increased rating for service-connected right knee disability should be reajudicated, and entitlement to a TDIU should be adjudicated. If the benefits sought on appeal are not granted, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), only a decision of the Board 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).