Citation Nr: 0004118 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 98-10 187 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable rating for a low back disorder, with arthritis and degenerative disc disease of the lumbar spine. 2. Entitlement to a compensable rating for a right knee disorder. 3. Entitlement to a compensable rating for a left knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John M. Clarkson, III, Counsel INTRODUCTION The veteran had active service from June 1976 to August 1997, together with additional active service prior to June 1976 which has not yet been verified. This appeal arises from a December 1997 rating decision which, among other things, awarded service connection and assigned separate, noncompensable ratings for a low back disorder with arthritis and degenerative disc disease of the lumbar spine, a right knee disorder, and a left knee disorder. REMAND As an initial matter, the Board of Veterans' Appeals (Board) finds that the veteran's claims for compensable ratings for a low back disorder with arthritis and degenerative disc disease of the lumbar spine, a right knee disorder, and a left knee disorder are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well-grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In a VA Form 9 filed in June 1998, and in a July 1998 statement submitted by the veteran in support of his claims, the veteran asserted that a November 1997 VA examination was inadequate because x-ray and magnetic resonance imaging (MRI) studies of the low back were not accomplished. The undersigned member of the Board is ordinarily not inclined to direct that x-ray and/or MRI studies be accomplished where service connection has been awarded, because there is no question as to the diagnosis of the disability at issue, and the only question is the current severity of the disability. However, in this case, following MRI studies in service, medical providers opined that the veteran's low back pathology included either a herniated disc or an epidural hematoma. The report of the VA examination of the veteran in November 1997 includes a diagnosis of herniated nucleus pulposus, but the examiner noted that diagnostic studies were not performed in connection with the examination, and the basis for the diagnosis remains unclear. Therefore, the Board concludes that there is a diagnostic question to be resolved with regard to the service-connected low back disorder. It is necessary to determine whether the veteran's service-connected low back pathology includes a herniated lumbar disc. Additionally, with regard to the claims for compensable ratings for the low back, the right knee, and the left knee, the Board notes that, if warranted by the medical evidence in this case, compensable ratings for the foregoing disorders may be assigned under Diagnostic Codes of VA's Schedule for Rating Disabilities (38 C.F.R. Part 4) for ratings based on limitation of motion. In DeLuca v, Brown, 8 Vet. App. 202 (1995), the Court held that disability ratings based on limitation of motion do not subsume 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45. In DeLuca, the claimant sought an increased disability rating for a musculoskeletal disorder, and the Court indicated that the medical examiner should be asked to determine whether the joint in question exhibited pain on use, weakened movement, excess fatigability or incoordination, and that these symptoms must be considered in the rating determination. At the conclusion of the November 1997 VA examination, the examiner stated that further examination relative to the DeLuca memorandum would be speculation. The undersigned Board member considers this comment to be unacceptable. If any of the above symptoms are observed on examination, their severity must be reported. If they are not observed, the physician must describe them as not observed. With regard to the right knee and left knee disorders, in VAOGCPREC 23-97, it was indicated that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 "based on additional disability". VAOGCPREC 23-97, reissued July 24, 1997. See also VAOGCPREC 9-98, dated August 14, 1998. Therefore, multiple disability ratings may be warranted for the right knee and left knee disorders if indicated by the medical evidence. Accordingly, for the foregoing reasons, the claims of entitlement to compensable ratings for a low back disorder, with arthritis and degenerative disc disease of the lumbar spine, for a right knee disorder, and for a left knee disorder are REMANDED for the following: 1. The veteran should be contacted and requested to furnish the full names and addresses of all health care providers who have treated him for low back, right knee, an left knee disorders since his VA examination in November 1997. Where necessary, the veteran should be requested to sign and submit the appropriate forms giving his consent for the release to VA of all records of any such treatment listed by the veteran. All records obtained must be associated with the claims folder. 2. After the above referenced development is completed, the veteran should be accorded a VA examination to determine the current nature and severity of his service-connected low back disorder, and the current severity of his service-connected right knee and left knee disorders. All clinical findings should be reported in detail. The examiner must review the claims folder and a copy of this remand in connection with the examination and state in the examination report that the review has been accomplished. Ranges of motion should be reported in degrees and in all planes. The examiner should indicate whether the low back, right knee, and left knee demonstrate any pain on undertaking motion, weakened movement, excess fatigability, or incoordination on movement. See DeLuca, supra. The examiner should indicate whether any limitation of motion of the low back is slight, moderate, or severe in degree. The examiner must comment as to whether the right knee and left knee exhibit subluxation and/or instability, and if so, whether such subluxation or instability is less than slight, slight, moderate, or severe in degree. The examiner should also indicate the effect of any impairment of the veteran's low back, right knee, and left knee on his ordinary activity, particularly in the work place. 3. Following completion of the foregoing, the RO should review the claims folder and ensure that all of the aforementioned development action has been conducted and completed. 4. The RO should then review the claims for compensable ratings for a low back disorder, for a right knee disorder, and for a left knee disorder to determine whether they may be granted. If any claim remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and given an opportunity to respond. 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).