Citation Nr: 0004127 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 98-13 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a rating in excess of 20 percent for a right knee medial collateral ligament (MCL), anterior cruciate ligament (ACL), and medial meniscus (MM) tear, status-post surgical procedure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from August 1972 to August 1996. This appeal is before the Board of Veterans' Appeals (Board) from an April 1997 rating decision from the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for a right knee MCL, ACL, and MM tear, status-post surgical procedure, evaluated as 20 percent disabling. REMAND The veteran's claim for a rating in excess of 20 percent for a right knee disability is well grounded. When a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999). Once the veteran has established a well-grounded claim, the VA has a duty to assist the veteran in the development of facts pertinent to his claim. See 38 U.S.C.A. § 5107(a) (West 1991). In this case, the VA has a duty to assist the veteran in obtaining additional medical records and a comprehensive medical examination. The August 1998 appeal alleged that Dr. Gordon, an orthopedic surgeon, told the veteran that his knee was unstable and that the meniscus tear was not repaired. The veteran's April 1999 letter alleged that the March 1999 supplemental statement of the case excluded consideration of his medical records from Mike O'Callaghan Federal Hospital (MOFH) where he received medical care for his knee. He also alleged that he received 2 cortisone injections this year for pain from Dr. Neeseman, an orthopedic surgeon at MOFH. Last year, a doctor prescribed Feldene for pain that the veteran could take daily, and another doctor advised him that he would need a knee replacement within the next 5 years. The veteran also reported that he was fitted for a right knee brace. The record does not include the referenced medical records. In addition, the January 1997 and September 1998 VA examinations were inadequate because the examiner failed to provide a full description of the effects of the disability upon the veteran's ordinary activity, whether pain could significantly limit functional ability during flare-ups or when the right knee was used repeatedly over a period of time, loss of range of motion portrayed in terms of the degrees of additional range of motion loss due to pain on use or during flare-ups, as well as many of the other matters listed below in Item 2. If a diagnosis is not supported by the finding on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (1999). Therefore, this case is remanded to obtain the veteran's full medical records and a comprehensive examination by a VA physician. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 4.2 (1999). This matter is remanded to the RO for further development as follows: 1. The RO should ask the veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, inpatient and outpatient, who have treated him for knee disorders since 1988. After securing any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources whose records have not previously been secured. Failures to respond or negative replies should be noted in writing and also associated with the claims folder. 2. After the above-requested development has been completed and the additional evidence added to the record, the veteran should be afforded a comprehensive VA examination. Any further indicated special studies should be conducted. The claims file and a separate copy of this remand should be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination report must be annotated in this regard. It is essential that the examiner review the claims folder in its entirety. The examiner should also take specific note of the veteran's reported and documented medical history, including in-service and post-service right knee conditions. The examiner should then offer a medical opinion as to: a) the medical classification of the right knee condition and etiological, anatomical, pathological, laboratory, and prognostic data required for the ordinary medical classification; b) a full description of the effects of the disability upon the veteran's ordinary activity; c) whether pain could significantly limit functional ability during flare-ups or when the right knee is used repeatedly over a period of time; d) loss of range of motion portrayed in terms of the degrees of additional range of motion loss due to pain on use or during flare-ups; e) crepitation; f) less or more movement than normal; g) weakened movement; h) excess fatigability; i) incoordination and impaired ability to execute skilled movement smoothly; j) pain on movement; k) swelling, deformity, or atrophy of disuse; l) instability of station; m) disturbance of locomotion; and n) interference with sitting, standing, and weight-bearing. Any opinions expressed by the examiner must be accompanied by a complete rationale. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and medical opinion to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the claim for a rating in excess of 20 percent for a right knee disability based on the entire evidence of record. All pertinent law, regulations, and Court decisions should be considered, including DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, and 4.71a, Diagnostic Codes 5003, 5010, 5257, 5258, 5260 and 5261 (1999). If the veteran's claim remains in a denied status, he and his representative, if any, should be provided with a supplemental statement of the case, which includes notice of any additional pertinent laws and regulations that were used, and a full discussion of action taken on the veteran's claim. The RO's actions should follow the Court's instructions detailed in Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran 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). A reasonable period of time for a response should be afforded. 5. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. 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. V. L. Jordan 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) (1998).