Citation Nr: 0001154 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 99-04 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a foot disorder. 2. Evaluation of left knee disability, currently rated as 10 percent disabling. 3. Evaluation of low back strain with left sciatica, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from August 1992 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) following a September 1998 decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) which, among other things, denied the veteran's claim of service connection for a foot disorder, but granted service connection for post- operative residuals of left knee arthroscopic surgery and low back strain with left sciatica. A 10 percent rating was assigned to each, effective from October 1, 1997. The Board notes that, by a January 1999 rating decision, service connection for De Quervain's disease of the right wrist was granted. By a March 1999 statement, the veteran expressed her desire to have the rating increased for this disability. Consequently, this claim is referred to the RO for appropriate action. REMAND Initially, the Board notes that the veteran testified at a personal hearing in June 1999 that there were United States Army National Guard medical records pertinent to her claims on appeal that had not been associated with the record. A review of the record on appeal reveals that, while the RO had attempted on at least one occasion to obtain such records, only one record--an August 1997 annual examination report, was received by the RO. Governing regulations provide that when, during the course of review, it is determined that further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, the Board shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 19.9 (1999). Given the likelihood that there are additional service department records that might affect the adjudication of the appeal, especially ones created during the pendency of this appeal, the Board finds that further action to obtain such medical records is appropriate. As for the rating claims, the Board notes that the veteran's left knee disability has been evaluated by the RO under 38 C.F.R. § 4.71a, Diagnostic Code 5262 (impairment of the tibia and fibula). However, the RO, in a subsequently prepared statement of the case, provided the veteran with the laws and regulations governing ratings on account of cartilage impairment, limitation of motion and instability, as well as tibia and fibula impairment. Such action suggests that consideration under various provisions of the rating criteria for evaluating knee disability is appropriate, including consideration of limitation of motion. In addition, the veteran's low back strain was evaluated by the RO as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5295 (lumbosacral strain), but the service- connected disability also contemplates left sciatica. Given the manner in which these disabilities has been evaluated, the Board finds that consideration must now be given to the degree of any functional loss caused by pain such as has been repeatedly complained of by the veteran. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion require consideration of functional losses due to pain, etc.); VAOPGCPREC 36-97 (Dec. 12, 1997) (because injury to the sciatic nerve may cause limitation of motion, consideration of 38 C.F.R. §§ 4.40, 4.45 must be undertaken when such a disability is service connected). Specifically, when rating musculoskeletal disability, it should be remembered that "a part which becomes painful on use must be regarded as seriously disabled." 38 C.F.R. § 4.40 (1999). In DeLuca v. Brown, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) noted that the VA examination relied on to rate the veteran's disability had merely included findings as to the range of motion without accounting for factors enumerated in § 4.40. The Court cited the case of Bierman v. Brown, 6 Vet. App. 125, 129 (1994) in which 38 C.F.R. § 4.10 was quoted for the proposition that a rating examination must include a "full description of the effects of disability upon the person's ordinary activity." DeLuca, at 206 (Emphasis added). In order to effectuate this requirement, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional loss are to be "'portray[ed]' (§ 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare- ups." Id. This is what is now required in the veteran's case. When seen by VA in July 1998, the veteran's complaints of chronic left knee pain and low back pain were noted. Additionally, clinical findings relative to her left knee and low back were made. Specifically, the examiner reported that the left knee had 0 to 125 degrees of motion. Her motion was stopped by pain, and she was unable to squat due to pain. The veteran was also diagnosed with chronic knee pain. However, there was no swelling or ligament laxity. Similarly, clinical findings relative to her low back were made. The examiner reported that range of motion studies revealed that forward flexion was to 60 degrees and was quite painful, backward extension was to 30 degrees and caused low back pain, left lateral bending was to 20 degrees with considerable low back pain, right lateral bending was to 30 degrees with slight low back pain, left rotation was to 35 degrees and quite painful, and right rotation was to 35 degrees with no pain. However, no deformity or muscle spasm was seen. Significantly, no attempt was made to express the functional losses experienced by the veteran in terms that can be used to apply the criteria of the applicable diagnostic codes. For example, while a veteran may have almost normal range of motion demonstrated in a clinical setting, her functional loss due to pain or flare-ups may be comparable to a disability level contemplated by more severe limitation of motion. If so, she must be rated accordingly. The only way to apply this rule is for the examiner to provide his/her best judgment as to the level of disability caused by the pain or flare-ups, etc., and to report such an opinion in terms that can be used to apply the rating criteria. Therefore, because governing regulations provide that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran, because the service-connected low back disability is ratable on loss of motion, and because the service-connected left knee disability appears to contemplate more problems than those addressed in Diagnostic Code 5262, a remand is required to ascertain the degree of functional impairment caused by each. See Esteban v. Brown, 6 Vet. App. 259 (1994) and VAOPGCPREC 23-97 (July 1, 1997) (separate ratings may be assigned for instability and loss of motion when rating knee disability). The case is REMANDED for the following actions: 1. The veteran should be allowed to supplement the record on appeal. 2. The RO should contact both the Adjutant General for West Virginia and the veteran's unit--HAC, 1st and 150th Armored Cavalry, Bluefield, West Virginia, 24701, to obtain any available medical records. The RO must memorialize all actions taken by it to obtain such records. 3. The veteran should be scheduled for a VA orthopedic and neurologic evaluations. The examiner should review the claims file, examine the veteran, and provide findings that take into account all functional impairments due to her service-connected left knee disability and low back disability, including problems such as pain, incoordination, weakness, fatigability, abnormal movements, etc. See 38 C.F.R. §§ 4.40, 4.45 (1999). The examiner should identify each functional debility legitimately experienced by the veteran solely due to service-connected disability. Functional loss due to such difficulties affecting the left knee and low back should be equated with additional loss in range of motion due to these factors and, for the back, additional criteria as enumerated in Diagnostic Codes 5293, 5295. See DeLuca, supra. The examiner should state whether the veteran has subluxation or lateral instability of her left knee as a result of service-connected disability. If so, the examiner should state whether it is severe, moderate, or slight. Additionally, the examiner should also indicate whether any left knee post- operative scarring is in any manner symptomatic, and if so, to what degree. 4. The RO should then review the claims on appeal. Particular consideration should be given to the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.71, 4.71a, 4.73 (1999) and the precepts of DeLuca, supra, Esteban, supra, and Fenderson v. West, 12 Vet. App. 119 (1999) (when an appeal has been taken from an original award, consideration must be given to "staged" ratings). If the service connection claim is found to be well grounded, the RO should undertake any additional development deemed appropriate in accordance with the duty to assist. If any action taken remains adverse to the veteran, a supplemental statement of the case (SSOC) should be issued. After the veteran has been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until further notice is received. The purpose of this remand is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. 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 or by the Court 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. MARK F. HALSEY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).