Citation Nr: 0000349 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 97-34 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 (1999) for a release of the right peroneal nerve on April 25, 1997. 2. Entitlement to an increased evaluation for a left knee internal derangement, currently rated at 10 percent disabling. 3. Entitlement to an increased evaluation for residuals of a right knee anterior cruciate ligament tear, currently rated at 20 percent disabling. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The veteran served on active duty from February 1988 to February 1991. This matter is currently before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. REMAND The veteran claims entitlement to a temporary total disability rating pursuant to the provisions of 38 C.F.R. § 4.30 for convalescence following April 1997 surgery for a release of the right peroneal nerve. A review of the record shows that the veteran is not service connected at this time for this disorder. Significantly, however, prior to undergoing the surgery the appellant presented two claims which remain unadjudicated. If the appellant is successful with either claim a grant of benefits under the provisions of 38 C.F.R. § 4.30 may in theory be granted. The first is an August 1995 claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 1991) for a right knee infection incurred during VA surgery performed in November 1992. The second, is a February 1997 claim to reopen the issue of entitlement to service connection for a right peroneal nerve disorder secondary to right knee anterior cruciate ligament tear residuals. As each issue is inextricably intertwined with the claim for benefits under 38 C.F.R. § 4.30, further development is in order. With respect to the veteran's increased rating claims, the Board finds that additional development is in order. In this regard, the Board observes that painful motion of a major joint caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). In considering the application of Lichtenfels, as well as the provisions of VA General Counsel Opinion VAOPGCPREC 23-97 (July 1, 1997); 62 Fed.Reg. 63604 (1997) , to the current case, the Board observes that, on VA examination in February 1998, the examiner indicated that earlier knee X-ray studies revealed bilateral degenerative changes. Hence, the diagnoses at that time included bilateral knee degenerative joint disease. A thorough review of the evidence of record reveals no X-ray evidence of bilateral knee degenerative joint disease. Indeed, a May 1995 X-ray study of the knees reveals no evidence of significant degenerative change or joint space narrowing. Still, the record does not reveal that the veteran has been afforded x-ray studies of either knee in many years. Therefore, additional development is in order. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Hence, this case is REMANDED for the following action: 1. The veteran should be requested to submit a list (containing names, dates, and addresses) of any additional sources of treatment (VA, private, or other) that he has received since 1998 for any knee disability, the records of which have not already been identified and/or obtained. After securing any necessary authorizations, the RO should then directly contact the sources which are identified and obtain copies of the records in their possession. 2. The appellant should be scheduled for an examinations by a VA orthopedist and a neurologist to determine the nature and extent of his right knee patellofemoral syndrome and left knee internal derangement. The physicians are to specifically determine whether the veteran suffers from recurrent subluxation or lateral instability in both knees. All necessary evaluations, tests, and studies, including X-ray studies of each knee, deemed appropriate must be performed. Additionally, each examiner must offer an opinion whether it is at least as likely as not that the appellant's history of a right peroneal nerve disability was caused or aggravated by the appellant's service connected right knee disorder. If the examiners find no relationship, then each must explain the basis for the opinion presented, and explain in detail why their opinion differs from those offered by a VA orthopedist in March 1997, and January 1998. All opinions and supporting rationales should be in writing. Since it is important that each disability be viewed in relation to its history, the veteran's claims folder, and a copy of this REMAND, must be made available to and reviewed by the examiner prior to conducting the requested examination The examination report must be typed. 3. For the requested examinations the appellant must be given adequate notice, to include advising him of the consequences of failure to report for the studies. If he fails to report for any examination, this fact should be noted in the claims folder and a copy of the scheduling notice should be obtained by the RO and associated with the claims folder. 4. Following completion of the foregoing, the RO should review the claims file to ensure that all of the foregoing development has been completed in full, to include a review of the examination. If the requested development is not in complete compliance with the instructions provided above, appropriate action should be taken. Upon completion of the above development, the RO should readjudicate the issues presented, as well as adjudicate the claim to reopen and the claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151. If any determination remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and be given an opportunity to respond. The purpose of this REMAND is to protect the appellant's right to due process and to fulfill the duty to assist. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. 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). DEREK R. BROWN Member, Board of Veterans' Appeals A claimant who has arthritis and instability of the knee may be rated separately under diagnostic codes 5003 and 5257.