Citation Nr: 1811167 Decision Date: 02/22/18 Archive Date: 03/06/18 DOCKET NO. 14-32 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for limitation of extension of the left knee. 2. Entitlement to a rating in excess of 20 percent for left knee residuals, medial menisectomy. 3. Evaluation of residuals of a right foot fracture, currently rated at 30 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to February 1986. This matter came 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 Waco, Texas. The Veteran testified before the undersigned Veteran's Law Judge during a May 2017 Video Conference hearing. The transcript of the hearing is of record. When the Veteran filed his Substantive Appeal in August 2014, he limited his appeal to the issues of increased ratings for left knee and right foot disabilities. The issue of an increased rating for a scar, status post left knee menisectomy, was not included in the Veteran's formal appeal. Therefore, an appeal on that issue was not perfected and it is not before the Board. 38 C.F.R. §§ 20.200, 20.202 The issue of an increased rating for a right ankle disability has been raised by the Veteran at his May 2017 Video Conference hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary prior to adjudicating the issues on appeal. The Veteran testified at his May 2017 hearing that he has receives ongoing treatment at the VA for his disabilities. Any outstanding VA treatment records should therefore be obtained. The Veteran also testified at his May 2017 hearing that his left knee disability has worsened since his last VA examination in March 2012. Specifically, the Veteran contends that his range of motion has decreased since that examination. As the evidence of record suggests his left knee disability has increased in severity since the most recent VA examination in March 2012, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). With regards to his right foot disability, the Veteran contends that his condition has worsened since it was last examined in March 2012. The Veteran has stated that, particularly when combined with his service-connected ankle disability, his right foot disability now presents a unique disability picture that more closely resembles loss of use for the right foot. Given these allegations of worsening, the Board finds that the Veteran should be afforded a new examination. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, and associate them with the claim file. Any efforts to obtain the records must be clearly documented in the claim file. 2. After the development above has been completed, schedule the Veteran for an appropriate VA examination to determine the current severity of his left knee disabilities. All necessary studies and tests should be conducted. Range of motion testing should be accomplished. The examiner must test and record the results of range of motion testing for pain (note where pain starts), in both active and passive motion, and in weight-bearing and nonweight-bearing. If any of the testing cannot be accomplished, the examiner should specifically indicate that such testing cannot be done and why. The examiner should also express an opinion regarding whether there would be additional functional impairment on repeated use or during flare-ups and assess that impairment in terms of the degree of additional range of motion loss. If such is not possible to determine without resort to speculation, the examiner must explain why. 3. After completing the foregoing development in (1) to the extent possible, schedule the Veteran for an appropriate VA examination to determine the current severity of his right foot disability. All necessary studies and tests should be conducted. Range of motion testing should be accomplished. The examiner must test and record the results of range of motion testing for pain (note where pain starts), in both active and passive motion, and in weight-bearing and nonweight-bearing. If any of the testing cannot be accomplished, the examiner should specifically indicate that such testing cannot be done and why. The examiner should also express an opinion regarding whether the severity of the Veteran's current right foot disability effectively constitutes loss of use of the foot. If the examiner finds that this is not the case, the examiner should explain why. The examiner should also express an opinion regarding whether there would be additional functional impairment on repeated use or during flare-ups and assess that impairment in terms of the degree of additional range of motion loss. If such is not possible to determine without resort to speculation, the examiner must explain why. 3. The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. The appellant 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 matter must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E. I. VELEZ 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).