08-02 707

• Court: Board of Veterans' Appeals
• Decided: March 8, 2010
• Docket: 08-02 707
• Status: Unpublished

Opinion

Citation Nr: 1008494 Decision Date: 03/08/10 Archive Date: 03/17/10

DOCKET NO. 08-02 707 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in New York, New York

THE ISSUE

Entitlement to an increased evaluation for service-connected status post left knee arthroscopy, currently evaluated as 10 percent disabling.

REPRESENTATION

Appellant represented by: New York State Division of Veterans' Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 1994 to February 1996.

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in New York, New York (RO).

In September 2009, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. A transcript of the hearing has been associated with the claims folder.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.

REMAND

The Veteran is seeking an increased evaluation in excess of 10 percent for her service-connected status post left knee arthroscopy. Based upon its review of the Veteran's claims file, the Board finds that there is a further duty to assist the Veteran with her claim herein. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).

VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) (West 2002). This duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). VA's duty to assist 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 the Board 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).

In this case, the Veteran last underwent a VA examination in March 2007, approximately 3 years ago. The Veteran also testified at a September 2009 hearing before the Board that her symptomatology for status post left knee arthroscopy had worsened. The Board therefore concludes that an additional VA examination is needed to provide a current picture of the Veteran's service-connected status post left knee arthroscopy. 38 C.F.R. §§ 3.326, 3.327 (2009).

Accordingly, the case is REMANDED for the following actions:

1. The RO must contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claim. Based on her response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond.

2. The Veteran also should be afforded an examination by an examiner with appropriate expertise to determine the nature and extent of all functional impairment due to her service-connected left knee disability. The claims folder must be made available to and reviewed by the examiner.

All indicated studies, including X-rays and range of motion studies in degrees, should be performed.

In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain.

The examiner should provide an opinion concerning the degree of severity of any instability or subluxation of the knee. The examiner should also determine if the knee locks and if so the frequency of the locking.

Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner. If feasible, 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 should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss.

The examiner should describe, in detail, any current neurological manifestations associated with the Veteran's service connected left knee disability.

The examiner should also provide an opinion concerning the impact of the service-connected left knee disability on the Veteran's ability to work. The rationale for all opinions expressed should also be provided.

A complete rationale for all opinions must be provided. The report must be typed.

3. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures.

4. The RO must notify the Veteran that it is her responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that an examination is scheduled and the Veteran does not report, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.

5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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 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.A. §§ 5109B, 7112 (West Supp. 2009).

_________________________________________________ DAVID L. WIGHT Acting Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).