Citation Nr: 0006665 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 97-32 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for bilateral intermittent knee hydroarthrosis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The appellant had active service from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1996 rating decision, in which the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) assigned a 10 percent disability evaluation for intermittent hydroarthrosis of the knees. The Board notes that, in a VA Form 21-4138 filing received in August 1997, the appellant raised the issue of service connection for a back disability as secondary to his service connected bilateral knee disability which has not yet been adjudicated by the RO and, thus, this claim is referred to the RO for appropriate action. REMAND The appellant contends that symptomatology associated with his bilateral intermittent knee hydroarthrosis warrants a disability evaluation in excess of the currently assigned 10 percent rating. In this respect, he complains of bilateral knee pain, stiffness, swelling and instability with an inability to engage in prolonged standing. He indicates that he must use a cane for assistance with walking, and he claims that he manifests arthritis in both knee joints. An August 1996 VA joints examination was positive for findings of slight infra patella fullness which was sensitive to touch, pain on lateral motion and limitation of motion of both knees upon flexion. An x- ray examination was interpreted as showing no evidence of degenerative changes in either knee. The examiner indicated a diagnosis of osteoarthritis of the left knee, but did not provide a diagnosis for the right knee disability. The examiner also did not assess the extent of any possible functional loss of use of either knee due to weakness, excess fatigability, incoordination, pain or pain on movement. A March 1998 outpatient treatment report from the VA Rheumatology Clinic noted findings of laxity of the patellae and the left lateral collateral ligament. It was noted that the appellant was being referred for physical therapy (PT) and magnetic resonance imaging (MRI) of the left knee. Upon review of the record, the Board notes that it does not appear that the RO has attempted to obtain records relative to the appellant's VA physical therapy and MRI study subsequent to March 1998. These records, which may be pertinent to the proper adjudication of the claim, should be obtained before this case is decided. See Bell v. Derwinski, 2 Vet.App. 363, 369-70 (1992) (VA is obligated to obtain pertinent treatment records of medical records generated by its agency). Furthermore, as the August 1996 VA joints examination did not reflect a diagnosis concerning the right knee disability, provide rationale for the diagnosis of left knee osteoarthritis in light of the negative x- ray findings, or assess the functional limitations of either knee, the examination report is inadequate for rating purposes. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997); Hayes v. Brown, 9 Vet.App. 67, 73 (1996); DeLuca v. Brown, 8 Vet.App. 202 (1995). As such, the appellant should be afforded a VA orthopedic examination for the purpose of separately evaluating the current nature and severity of the appellant's left knee and right knee disabilities, to include an opinion concerning the extent of functional loss due to weakness, excess fatigability, incoordination, pain or pain on movement. Finally, the Board notes that service connection is in effect for intermittent hydroarthrosis of both knees. Upon remand, the RO should assign separate ratings for the left and right knee disabilities. In view of the fact that the appellant does hold a diagnosis of "osteoarthritis" the RO should consider the applicability VA O.G.C. Prec. Op. No. 09-98 (August 14, 1998) wherein it was held that, where a claimant has instability of the knee and arthritis with limitation of motion which at least meets the criteria for a zero percent disability evaluation under Diagnostic Codes 5260 or 5261, separate ratings may be assigned under Diagnostic Codes 5257 and 5003. Cf. VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997). As required by Deluca, the RO must also give consideration to an increased evaluation for any additional functional limitation pursuant 38 C.F.R. §§ 4.40 and 4.45. Accordingly, this case is REMANDED for the following action: 1. The RO should take the necessary steps to obtain the appellant's VA clinical records, to include physical therapy notes and MRI studies from the Birmingham VA Medical Center, since March 1998. 2. 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). 3. Following the receipt of any additional records, the appellant should be afforded a VA orthopedic examination for the purpose of separately evaluating the current nature and severity of the appellant's left knee and right knee disabilities. A detailed history should be obtained from the appellant and the record carefully reviewed. In addition to addressing the range of motion and structural integrity of the left and right knees, the examiner is requested to specifically address whether there is functional loss due to weakness, excess fatigability, incoordination, pain or pain on movement. DeLuca v. Brown, 8 Vet.App. 202 (1995) (medical examination must comply with requirements of 38 C.F.R. §§ 4.40, 4.45 and 4.59 which, in addition to the schedular criteria, require the examiner to express opinion on whether pain could significantly limit functional ability on motion during use with acute flare- ups of disability and in terms of the degree of additional range-of- motion loss due to weakened movement, excess fatigability, or incoordination). The examiner must provide a diagnosis for the left and right knee disabilities with rationale given for any opinion expressed. The claims file and a copy of this remand must be made available to the examiner. 4. The appellant is hereby advised that, in the event he fails to report for VA examination without good cause, his increased rating claim shall be denied. 38 C.F.R. § 3.655(b) (1999). 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 6. Following the completion of the above, the RO should readjudicate the claim for an increased rating for bilateral intermittent knee hydroarthrosis. In so doing, the RO should assign separate disability evaluations for the left and right knees with consideration given to all relevant schedular criteria, to include 38 C.F.R. §§ 4.40 and 4.45, Diagnostic Code 5003, VA O.G.C. Prec. Op. No. 09-98 (August 14, 1998) and the holding in DeLuca. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. JOHN FUSSELL Acting 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).