Citation Nr: 0000676 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-08 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES Entitlement to an increased rating for bursitis of the left knee with a history of collateral ligament sprain and iliotibial band syndrome, currently evaluated as 10 percent disabling. Entitlement to service connection for a left foot disorder, as secondary to the service-connected disability of bursitis of the left knee, with a history of collateral ligament sprain and iliotibial band syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Todd R. Vollmers, Associate Counsel INTRODUCTION The veteran had active service from November 1983 to August 1992. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, in January 1998 which denied service connection for a left foot disorder on a secondary basis, and a March 1998 decision that reduced the evaluation for the veteran's service-connected left knee disorder to noncompensable. A 10 percent rating for the veteran's service-connected left knee disorder was later restored in a decision in August 1998. The Board also notes that the issue of service connection for a left hip disorder on a secondary basis, which was previously on appeal, was withdrawn by the veteran at a hearing held at the RO in July 1998. REMAND The Board notes that during his hearing at the RO in July 1998, the veteran stated that he had received treatment at the Washington, D.C. VAMC, and that these records had been transferred to the Baltimore VAMC. It does not appear that the VA treatment records cited by the veteran have been obtained for association with the claims folder. These reports must be obtained prior to deciding the veteran's claims. The United States Court of Appeals for Veterans Claims has ruled that in certain circumstances, records may be deemed to be constructively before the Board. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, any existing VA records must be obtained prior to further appellate consideration of the merits of the veteran's claims. With reference to the veteran's claim for an increased rating for service-connected bursitis of the left knee with a history of collateral ligament sprain and iliotibial band syndrome, the veteran has contended that he has pain and functional impairment due to his disability. The last VA examination of record, conducted in July 1998, is insufficient to assess the current state of the veteran's service-connected disability and any accompanying functional impairment. Another VA examination is therefore necessary prior to rendering a decision in this case. The United States Court of Appeals for Veterans Claims held in DeLuca v. Brown, 8 Vet. App. 202 (1995), that the provisions of the Rating Schedule do not subsume 38 C.F.R. § 4.40, and that 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In addition, the Court stressed that, because disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, it is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. See 38 C.F.R. §§ 4.40, 4.45. Further, in Hicks v. Brown, 8 Vet. App. 417 (1995), the Court held that the provisions of 38 C.F.R. § 4.59, as they pertain to painful motion, must also be specifically addressed by the examiner. Therefore, the examination and the readjudication requested on REMAND should include consideration of all the factors set forth in 38 C.F.R. §§ 4.40, 4.45, and 4.59, in relation to the veteran's disability. Therefore, this case is REMANDED for the following additional actions: 1. The RO should contact the VAMC's in Washington D.C. and Baltimore, Maryland and request copies of all treatment records pertaining to the veteran since his discharge from service in 1992. All records obtained should thereafter be associated with the claims folder. 2. Thereafter, arrangements should be made to have the veteran undergo a special orthopedic examination in order to ascertain the nature and severity of his service-connected bursitis of the left knee, with a history of collateral ligament sprain and iliotibial band syndrome. The claims folder must be reviewed by the examiner prior to conducting the examination. All indicated special tests and studies should be conducted to include range of motion studies expressed in degrees and in relation to normal range of motion. The orthopedic examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the veteran's service-connected disability. The examiner should be asked to determine whether the affected area exhibits weakened movement, excess fatigability, or incoordination and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should also provide an opinion as to whether pain could significantly limit functional ability during flare-ups or when the affected area is used repeatedly over a period of time. This determination should if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. 3. Upon completion of the above requested development of the record, the RO should again consider the veteran's claims. In considering the veteran's claim concerning his service-connected bursitis of the left knee, with a history of collateral ligament sprain and iliotibial band syndrome, the RO should take particular consideration of the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. If action taken remains adverse to the veteran, he and his accredited representative should be furnished with a supplemental statement of the case concerning all additional evidence added to the record and they should be given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action until otherwise notified, but 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). By this REMAND, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this REMAND is to obtain clarifying information and to provide the veteran with due process. 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. C. W. Symanski Member, Board of Veterans' Appeals 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).