Citation Nr: 0001542 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 96-51 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for the service-connected residuals, removal semi-lunar cartilage right knee, with post-operative scar, symptomatic, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from July 1942 to January 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 1996 rating action of the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). In February 1997, the veteran testified at a personal hearing at the RO. A transcript of that hearing is associated with the record. REMAND The veteran contends that his service-connected right knee disorder is more severe than the current rating indicates. The United States Court of Appeals for Veterans Claims (hereinafter, the Court) has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Inasmuch as the veteran has submitted a well- grounded claim, VA is obligated to assist him in the development of that claim. 38 U.S.C.A. § 5107(a) (West 1991). The veteran's service-connected right knee disability is presently assigned a 10 percent rating under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5259 (1999) pertaining to removal of semilunar cartilage, symptomatic. Medical evidence of record includes x-ray evidence of degenerative joint disease in the right knee and the presence of a Baker's cyst in that knee. The record also includes the veteran's complaints of right knee pain and his report that his knee is unstable. Although the record includes reports of VA examinations conducted in July 1996 and April 1999, the Board finds those examinations inadequate for rating purposes. The reports of the VA examinations include the veteran's complaints and the most recent examination noted that he wore a brace on the right knee for support. What is unclear from the examinations and other medical evidence of record, however, is the extent of any instability of the right knee, whether that instability is a residual of the service- connected removal of cartilage in that knee and whether the Baker's cyst is related to the service-connected right knee disorder. In addition, any examination of musculoskeletal disability done for rating purposes must include consideration of all factors identified in 38 C.F.R. §§ 4.40, 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, because the diagnostic codes used to rate the veteran's right knee disability are cast in large measure in terms of limitation of motion, any examination for rating purposes must be expressed in terms of the degree of additional range-of- motion loss due to any pain on use, incoordination, weakness, fatigability, or pain during flare- ups. DeLuca, supra. Accordingly, the examination ordered on remand should include medical determinations on whether the right knee exhibits pain with use, weakened movement, excess fatigability, incoordination, or any other functionally disabling symptom. Additionally, and most importantly, these determinations should be expressed in terms of additional range-of-motion loss beyond that already demonstrated clinically. In other words, any functional loss found, such as the pain complained of by the veteran, must be quantified as additional loss of motion. DeLuca, supra. The report of the April 1999 VA examination included the veteran's complaints of knee pain and his self-report that activity was limited by exacerbation of symptoms; however, there was no quantifiable explanation given as to how these symptoms affected the veteran, such as in terms of additional range-of-motion loss beyond that clinically found. DeLuca requires that this be done. The Board also notes that the examiner noted no ligament laxity. The veteran testified to the contrary, reporting that he suffered instability of the knee and indicating that he used a knee brace for support. As noted in opinions of the VA General Counsel (VAOPGCPREC 23-97 and 9-98), a claimant who has arthritis and subluxation/instability of a service-connected knee may be rated separately under Diagnostic Codes 5257 and 5003 (and therefore 5010), relative to arthritis. As the extent of any instability or subluxation is unclear, the Board finds that another examination should be conducted. If the VA examination undertaken on remand shows instability or subluxation or arthritis related to the service-connected removal of cartilage in the right knee, the RO must consider all applicable diagnostic codes. As the original grant of service connection contemplated disability manifested by a scar on the right knee, a rating under that code must be considered as well. See Esteban v. Brown, 6 Vet. App. 259 (1994). The Board also points out that among the diagnostic codes possibly applicable to the knee, Codes 5260 and 5261 are based essentially on range of motion. Thus the RO must insure that the examination conducted on remand adequately portrays the extent of functional loss due to pain on use or due to flare-ups. See DeLuca, supra. Where the record before the Board is inadequate, a remand is required. The development of facts includes a "thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Thus, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran in order to obtain the names and, for non-VA providers, the addresses of all medical care providers who treated him for his service-connected right knee disability since 1996. After securing the necessary release, the RO should attempt to obtain copies of all records from the identified treatment sources. 2. The veteran should be afforded an appropriate VA examination to determine the nature and extent of all current disability of the right knee. The claims folder should be made available to the examiner prior to the examination. All indicated testing should be conducted. The examination report should fully set forth the current complaints, pertinent clinical findings, and diagnoses affecting the right knee. The examiner should report detailed findings regarding any scar on the right knee, and address the relationship, if any, between the Baker's cyst and the service-connected disorder. Whether there is lateral instability and/or recurrent subluxation should also be indicated and, if so, the extent thereof and the relationship, if any, between the instability or subluxation and the service-connected right knee disorder. The examiner should also state whether any x-ray findings of arthritis in the right knee are a residual of the service-connected removal of semilunar cartilage. Moreover, the extent of any functional loss of the right knee due to weakened movement, excess fatigability, incoordination, or pain on use should be noted. The examiner should also state whether any pain claimed by the veteran is supported by adequate pathology and evidence by his visible behavior. Any additional impairment on use should be described in terms of the degree of additional range- of-motion loss. See DeLuca, supra. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the requested development actions have 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 taken. Thereafter, the RO should again review the veteran's claims for increase, with consideration of all applicable rating criteria, DeLuca and the VA General Counsel opinions referenced earlier. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BARBARA B. COPELAND Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).