Citation Nr: 0004272 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-11 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for residuals of fractures of the second, third, and fourth metacarpals of the right hand, status post open reduction internal fixation, currently rated 10 percent disabling. 2. Entitlement to an increased rating for residuals of fracture of the left patella, displaced, status post open reduction internal fixation, with secondary patellofemoral arthritis, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran served on active duty from December 1975 to October 1981. The appeal arises from the May 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, denying an increase above a 10 percent rating for a right hand injury, noted to consist of residuals of fracture of the index, middle, and ring fingers; and denying an increase above a 10 percent rating for residuals of left knee injury, status post open reduction internal fixation with arthritis. The Board notes that the RO had previously denied increased rating claims for these two disorders in a July 1989 rating decision, with notice of that decision issued by the RO in July 1989, and the veteran had submitted a notice of disagreement with that July 1989 decision in July 1990. A Statement of the Case was issued by the RO in August 1990, notifying the veteran, among other things, that he had 60 days from the date of that Statement of the Case either to perfect his appeal or to request additional time. By a November 1990 submission, the veteran attempted to suspended action of his appeal of the July 1989 decision. However, as the veteran did not submit this request for additional time either within one year of the August 1989 decision or within 60 days of the August 1990 issuance of the Statement of the Case, the July 1989 decision had already become final, barring appeal, prior to his request for additional time for appeal. Hence as the July 1989 decision was final, the request for additional time for appeal was without legal merit. 38 C.F.R. § 19.32 (1999); see YT v. Brown, 9 Vet. App. 195 (1996); see also Cuevas v. Principi, 3 Vet.App. 542, 546 (1992). Accordingly, the current appeal arises from the May 1998 RO rating decision, not the July 1989 RO rating decision. REMAND In a November 1990 statement the veteran informed that he could not make a fist or hold anything for any length of time with his right hand without severe pain. In a June 1998 notice of disagreement with the appealed decision, the veteran reported, in effect, that his right hand and left knee disorders had worsened and warranted increased ratings. The Board finds the appellant's claims well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claims are plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). These findings are based on the appellant's evidentiary assertions that his service-connected disabilities have increased in severity. Proscelle v. Derwinski, 1 Vet.App. 629 (1992); King v. Brown, 5 Vet.App. 19 (1993). Once it has been determined that the claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. The injuries resulting in the disabilities which are the subject of appeal were sustained by the veteran in 1979. The service medical records indicate that the veteran is right handed. The Board has also noted for historical purposes that rating actions in September 1987 and July 1989 denied service connection for right carpal tunnel syndrome. That issue was also covered in the August 1990 Statement of the Case, which was not the subject of a timely substantive appeal. The veteran's representative accurately stated in June 1998 that the veteran had not been afforded a VA examination to adequately ascertain the current level of disability of the service-connected residuals of right hand and left knee fractures herein appealed. Where the medical record is insufficient and the claim is well grounded, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttman v. Brown, 5 Vet.App. 127, 128 (1993); Green (Victor) v. Derwinski, 1 Vet.App. 121, 124 (1991). Therefore the Board finds that further development is required. When reviewing the level of disability due to a service- connected disability affecting a joint, and the rating is based on limitation of motion, the Board must consider an increased schedular rating based on functional loss due to pain on undertaking motion, weakened movement, fatigability, and incoordination. 38 C.F.R. §§ 4.40 and 4.45 (1999); DeLuca v. Brown, 8 Vet.App. 202 (1995). In addition, the Board points out that separate disability ratings may be assignable for knee disabilities. In a VA General Counsel Opinion, VAOPGCPREC 23-97 (July 1, 1997), it was held that arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (5010) for limitation of motion and Diagnostic Code 5257, for other disability of the knee including subluxation or lateral instability. Also, VAOPGCPREC 9-98 (August 14, 1998) indicated that when a knee disability is rated under Diagnostic Code 5257 it is not required that the claimant have compensable limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. It is only required that the claimant's degree of limitation of motion meet at least the criteria for a zero- percent rating. These distinct bases for disability ratings for the veteran's service-connected left knee disorder, as well as 38 C.F.R. §§ 4.40 and 4.45, and the Court's decision in DeLuca, supra, must be considered. Favorable ankylosis of the second, third, and fourth fingers of a major hand is rated 30 percent disabling. Diagnostic Code 5222. A regulatory note which follows this Code states that the rating is for favorable ankylosis or limited motion permitting flexion of the tips of the fingers to within two inches of the transverse fold of the palm. Limitation of motion of less than one inch in either direction is not considered disabling. The case is therefore REMANDED to the RO for the following: 1. The RO should request that the veteran identify all sources of medical treatment received for his residuals of fractures to the second, third, and fourth metacarpals of the right hand, and residuals of fracture of the left knee with arthritis, since March 1992, and that he furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies for treatment of his lumbosacral strain. Copies of the medical records from all sources he identifies, and not currently of record, for these disorders should then be requested and associated with the claims folder. 2. The veteran should be afforded a VA orthopedic examination to determine the degree of severity of his service- connected residuals of fractures of the second, third, and fourth metacarpals of the right hand, status post open reduction internal fixation, and service- connected residuals of fracture of the left patella, displaced, status post open reduction internal fixation, with secondary patellofemoral arthritis. The claims folder including a copy of this Remand must be made available to the examiner prior to the examination and must be reviewed by the examiner in connection with the examination. The examiner should specify on the examination report that the claims folder has been reviewed. The examiner should determine all disability of the right hand, including the fingers, that is residual of the fractured metacarpals, noted above. The examiner should specify any resulting ankylosis of the digits of the right hand and whether such ankylosis is in favorable position, unfavorable position, or extremely unfavorable position. The examiner should also specify any limitation of motion of the index, middle, and ring fingers, including whether the tips of these fingers can be brought within two inches of the transverse fold of the palm and/or whether limitation of motion of one or more of these fingers is less than one inch in either direction. Looking to the veteran's service- connected residuals of fracture of the left patella, displaced, status post open reduction internal fixation, with secondary patellofemoral arthritis, the examiner should ascertain the nature and extent of any arthritis, and also note any subluxation and/or instability. If subluxation or instability is present, the examiner should state whether it is less than slight, slight, moderate, or severe in degree. Limitation of motion of the knee in both flexion and extension should be specified in degrees. As regards the left knee, the examiner should also comment on the effects of the service-connected disorder upon the veteran's ordinary activity and how any pain impairs him functionally, particularly in the work-place, including, specifically, the degree of functional loss, if any, resulting from pain on undertaking motion, weakened movement, excess fatigability, or incoordination, as contemplated by DeLuca and the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999), as applicable. 3. The RO should review the claims folder and ensure that the foregoing development actions have been completed. If any development is incomplete, appropriate corrective action is to be implemented. If the requested examination does not fully comply, including review of the claims file, the examination report must be returned for corrective action. 4. The RO should then readjudicate the appealed increased rating claims. If any determination remains to any extent adverse to the veteran, the veteran and his representative should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. They should be afforded the applicable time to respond. The case should be returned to the Board for further appellate review, if in order. The purpose of this remand is to procure clarifying data and to comply precedent decisions of the Court. 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. BRUCE E. HYMAN 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).