Citation Nr: 1808043 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-21 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for the left knee disability in excess of 10 percent prior to March 8, 2013, and in excess of 30 percent from May 1, 2014 for left knee replacement (exclusive of the period from March 8, 2013, until April 30, 2014, during which time a total (100 percent) disability rating was in effect). 2. Whether new and material evidence has been received to reopen a claim of service connection for a lower back disorder, to include as secondary to the left knee disability. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to June 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board video-conference hearing in August 2017. He submitted additional evidence and waived initial RO consideration. See 38 C.F.R. § 20.1304(c). The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that increased ratings are warranted for his service-connected left knee disorder. As noted above, the Veteran underwent a left total knee replacement on March 8, 2013 and received a 100 percent rating from March 8, 2013 to April 30, 2014. He has been afforded several VA examinations during the appeal period, including in February 2016 and December 2016. The February 2016 examiner diagnosed the Veteran with degenerative osteoarthritis of the left knee, status post total knee replacement. The Veteran reported after his left total knee replacement, he does not have the pain he once had and described his knee as mild and tight. The Veteran reported flare-ups and functional loss, including difficulty with kneeling, stability and balance. Range of motion testing showed flexion to 100 degrees and extension to zero degrees with no loss of motion after repetitive testing. The examiner indicated symptoms of less movement than normal and weakened movement. She noted the March 2013 left knee procedure and that the Veteran suffers intermediate degrees of residual weakness, pain or limitation of motion. The Veteran was afforded a VA knee examination in December 2016. Range of motion testing showed flexion to 110 degrees and extension to zero degrees with pain causing functional loss. The examiner indicated evidence of pain with weight bearing and non-weight bearing, as well as pain on passive range of motion. The Veteran noted flare-ups, including intermittent pain. While the examination was not performed during a flare-up, the examiner stated the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. She indicated as a result of the prior left total knee replacement surgery, the Veteran suffers from intermediate degrees of residual weakness, pain or limitation of motion. Thereafter, the Veteran was afforded an August 2017 Board hearing in which he testified despite the March 2013 total knee replacement procedure, he continues to have problems with the knee, including a lack of stability. He indicated he cannot walk without assistance and experiences locking, tightness and pain. He stated his knee pain wakes him up at night and has caused him to fall several times since his surgery. Despite the recent VA examinations, the Veteran contends that his left knee condition has worsened and that increased ratings are warranted. Therefore, the Board finds a new VA examination is required to determine the current and recent severity of his left knee disorder. There is evidence in the record suggesting that the Veteran's disability may have worsened since the last VA examination in December 2016. Thus, the examiner must address the current and recent nature and severity of the Veteran's left knee disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board notes the Veteran's claim of service connection for a lumbar strain, as secondary to the service-connected left knee disability, was denied in an October 2014 rating decision, as the evidence submitted was not new and material. Thereafter, the Veteran submitted a March 2015 statement that can be reasonably construed as a notice of disagreement (NOD) in which he indicated he was submitting medical evidence which is new and material to allow the RO to reconsider his denied back claim. Although the NOD was not submitted on a the standard VA Form, this NOD was received eight days prior to the amendments requiring an NOD to be submitted on a standard VA Form. See 38 C.F.R. § 20.201 (2017) (effective March 24, 2015). When a NOD is submitted in response to a rating decision, a statement of the case (SOC) is necessary. Thus, the Board will remand the issue for a SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Lastly, in light of the remand, updated private and VA treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Prepare an SOC concerning the issue of whether new and material evidence has been received to reopen a previously denied claim of service connection for a low back disorder. This issue should only be returned to the Board if a timely substantive appeal is filed. 2. Obtain VA treatment records since June 2017. 3. Obtain all relevant private treatment records. Notify the Veteran that he may provide releases for VA to obtain any outstanding private treatment records, or that, in the alternative, he may submit any such outstanding records directly to VA himself. 4. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to determine the current nature and severity of his service-connected left knee disability. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The level of joint instability should also be assessed. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated and discussed by the examiner. If any of this cannot be accomplished it should be explained why. A complete rationale should be provided for any opinion reached. 5. Finally, readjudicate the appeal. If the benefits sought remain denied, issue a supplemental statement of the case (SSOC) and return the case to the Board. 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 case 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board is appealable to the Court. 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).