BVA9506472 DOCKET NO. 93-12 349 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for residuals of left lateral meniscectomy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from June 1972 to October 1975. This appeal to the Board of Veterans' Appeals (Board) arises from the July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied an increased rating for residuals of left lateral meniscectomy, currently evaluated as 10 percent disabling. On appeal the veteran and his representative have raised a claim for secondary service connection for a left foot disorder that is alleged to be proximately due to the veteran's service connected left knee disability, as well as a claim for payment of a clothing allowance. Those claims have not been developed for appellate review and are not "inextricably intertwined" with the increased rating issue currently before the Board. However, the attention of the RO is directed to consideration of those matters. REMAND On preliminary review of the record the Board notes a sharp conflict in clinical evidence regarding the level of left knee instability. Relaxed medial and lateral collateral ligaments were noted in the initial VA compensation examination in 1976. Positive Lachman's and anterior drawer signs and positive apprehension test were noted during a subsequent VA examination in June 1982. Positive apprehension test was also noted in December 1991 outpatient records which reflect negative McMurray and posterior drawer signs. Other recent clinical findings in January and May 1992 outpatient records indicate that medial collateral ligament laxity (MCL) was 2 plus, indicating a moderate level of instability, and anterior cruciate ligament laxity (ACL) was 1 plus. On May 1992 compensation examination the knee was stable to varus and valgus testing, both zero and 30 degrees. Lachman's test and posterior drawer test were negative. The October 1992 outpatient examiner recommended continued bracing. Additionally, the veteran has stated that his left leg is useless because of pain, fatigue, uncertainty of motion, and lack of endurance and strength. He contends that no tests of strength were conducted during his May 1992 VA compensation examination. He also claims that a VA physician has advised him that joint fusion or replacement is warranted. Such information is not reflected in the records available to the Board. However, it is noted that the veteran submitted directly to the Board a report of arthroscopic surgery performed in October 1994 in a private facility. It does not appear that the RO has had the opportunity to review this record, and should do so prior to appellate review. In addition, the Board notes that the veteran also claims that he has lost "too much time" from work to obtain medical care for his knee. In view of the passage of time since the veteran's most recent VA examination, the Board finds that it is necessary to remand the case for an additional examination and compilation of up-to-date treatment records, in order to assess the current status of the service connected left disability, and ensure that VA has fulfilled its obligation to assess the veteran in the development of facts pertinent to his claim. Therefore, the case is REMANDED for the following actions: 1. The RO should request that the veteran provide the names and addresses of each and every medical care provider, both VA and private, who has examined or treated him for his left knee disability since the treatment of record, in addition to the approximate dates of such examinations or treatment. After any necessary releases have been obtained, the RO should request copies of all previously unobtained clinical records from the health care providers identified by the veteran, with special attention to any records compiled after his October 1994 surgery. All records received should be associated with the veteran's claim folder. 2. The RO should request that the veteran or his employer supply documents reflecting time lost from work since January 1992. 3. After the above development is completed, the RO should schedule the veteran for a comprehensive examination by a VA orthopedic specialist, who has not previously examined or treated the veteran. This study must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests, including X-rays, if appropriate, must be conducted. The claims folder must be made available to, and reviewed by the examiner prior to the requested studies. The examiner's report should comment on instability, range of motion, the effect of pain on motion, coordination, fatigability, weakness, swelling, deformity, atrophy, and any additional pertinent findings, which describe the status of the veteran's left knee disability. To the extent possible, the examiner should distinguish between the symptoms and manifestations attributable to the veteran's service connected residuals of meniscectomy and those symptoms attributable to other causes. The examiner's opinions should be supported by appropriate clinical findings and full rationale. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the requested development has been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 5. The RO should then review the veteran's claim, in light of all evidence of record. In this regard, consideration of his claim should be accorded under the provisions of 38 C.F.R. § 4.40 (1994) relating to functional loss and 38 C.F.R. § 3.321 (1994) relating to referral for extraschedular consideration. If action taken remains adverse to the veteran, the RO should issue to the veteran and his representative, a supplemental statement of the case, containing a recitation of any new evidence, and a citation to all relevant law and regulations, including 38 C.F.R. §§ 3.321 and 4.40 and a statement of reasons for actions taken. A reasonable period of time for response should be provided. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this action the Board intimates no opinion, either legal or factual, as to the ultimate determination in this case. No action by the veteran is required until he receives further notice. _____________________________ N. R. ROBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).