Citation Nr: 1808834	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  14-01 239	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an evaluation in excess of 30 percent for a total right knee replacement.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Rocktashel, Associate Counsel






INTRODUCTION

The Veteran served on active duty from September 1972 to May 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Board finds that further development is required prior to adjudicating the Veteran's claim.  See 38 C.F.R. § 19.9 (2016).  Specifically, remand is warranted for a new examination.  In the January 2018 appellate brief, the Veteran's representative asserted that the Veteran's disability had worsened.  The last VA examination was provided in September 2013.  The Board is not required to seek a new VA medical examination based solely on the mere passage of time.  Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007).  However, a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination.  Snuffer v. Gober, 10 Vet. App. 400 (1997); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) ("Where an appellant claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of appellant's current condition, the VA's duty to assist includes providing a new examination.")  

Here, there are no medical records to determine whether or not there is evidence of worsening.  The Veteran contends in his substantive appeal that he underwent physical therapy and essentially attained maximum medical improvement.  There are no treatment records available for the time period after the Veteran's total knee arthroplasty surgery.  Thus, giving the Veteran the benefit of the doubt, the Board finds a new VA examination is warranted.  On remand, outstanding medical records must be sought.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify and provide authorization to obtain any outstanding, relevant treatment records.  After securing the necessary authorization, these records should be requested.  If any records are not available, the Veteran should be notified of such.

2.  Schedule the Veteran for a VA examination to determine the extent of his right knee disability post total knee replacement.  

The examiner should comment on the following:

a.  whether there is evidence of pain on passive range of motion testing;

b.  whether there is evidence of pain when the joint is used in non-weight bearing; and  

c.  whether the opposing joint undamaged (i.e. no abnormalities)

If the examiner is unable to conduct the required testing in items "a" through "c," 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 provide all findings, along with a complete rationale for any opinions provided.


3.  If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure.

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 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).



_________________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 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).