Citation Nr: 0001722 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 96-29 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased rating for the service connected left knee disability, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from April 1958 to June 1980 with 3 years, 11 months and 6 days of prior active service. This appeal arises from a March 1996 rating decision of the Newark, New Jersey Regional Office (RO) which denied the veteran's claim for an increased rating for his service connected left knee disability. REMAND During service, surgery was performed for a torn left medial meniscus. By rating decision in September 1980, service connection was granted for left knee disability and a 10 percent evaluation was assigned under Diagnostic Code (DC) 5259. The veteran filed a claim for a rating in excess of 10 percent for his service connected left knee disability in January 1996. The veteran has complained of left knee pain that has progressively increased over the years. He has reported suffering from occasional swelling and giving way of the knee. Prolonged standing, walking and climbing caused increased pain and symptoms. On VA Form 9, submitted in June 1996, the veteran indicated that he suffered from decreased range of motion with use of the left knee and during flare-ups of symptoms. The left knee gave way or locked-up when moved side to side on a frequent enough basis that the veteran was no longer confident in his actions. Pain was constant and varied in intensity. X-rays of the left knee in April 1997 revealed marked degenerative joint disease. By rating decision in December 1997, a 20 percent evaluation was assigned for left knee disability under DC 5257 for moderate impairment of the knee. In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that, in evaluating a service-connected disability involving a joint, the Board erred by not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. It was further held that the diagnostic codes pertaining to range of motion did not subsume 38 C.F.R. § 4.40 and § 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 did not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including during flare-ups. In DeLuca, the Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time. The Court also held that the examiner should be asked to determine whether the joint exhibited weakened movement, excess fatigability or incoordination. These determinations were to be expressed in terms of additional range of motion lost due to any pain, weakened movement, excess fatigability or incoordination. Accordingly, as the veteran has complained of increased symptoms to include pain and limitation of motion with use of left knee, an additional VA orthopedic examination should be conducted to address the factors mandated in DeLuca. The Board notes that the veteran is currently rated on the basis of instability under Diagnostic Code 5257. X-rays have demonstrated the presence of arthritis. Therefore, on remand, the RO must consider the principles of rating enunciated in VAOPGCPREC 23-97 (July 1, 1997) (under certain circumstances, separate ratings may be assigned for separate manifestations of knee disability). The Court has observed that VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121 (1991). A review of the August 1998 VA orthopedic examination report reveals that the examiner did not have the veteran's claims folder prior to conducting the examination. The report of examination, therefore, is flawed. The provisions of 38 C.F.R. § 3.655 (failure to report for VA examination) are especially relevant in the context of the Board's current remand for a VA examination concerning the veteran's increased rating claim. § 3.655(a) provides that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Subsection (b), which applies to the instant appeal regarding a claim for increase, provides that when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Under the circumstances of this case, the Board finds that further assistance is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers where he has received treatment for left knee disability in recent years. Thereafter, the RO should obtain legible copies of all records which have not already been obtained. Once obtained, all evidence should be associated with the claims folder. 2. Following completion of the above action, the veteran should be afforded a VA orthopedic examination to determine the current severity of left knee disability. The importance of appearing for the scheduled examination and the consequences of his failure to do so have been made known to the veteran in the body of the remand above. The claims folder must be made available to the examiner prior to the examination. All disability should be evaluated in relation to its history with emphasis on the limitation of activity and functional loss due to pain imposed by the disability at issue in light of the whole recorded history. All indicated tests must be performed to include complete range of motion studies. Normal range of motion findings should also be provided for the left knee. The examiner should indicate whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss of the service connected left knee due to any of the following: (1) pain on use, including flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The above determinations must, if feasible, be expressed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups under § 4.40, and weakened movement, excess fatigability, or incoordination under § 4.45. If the examiner is unable to make such a determination, it should be so indicated on the record. The examiner should also indicate whether there is evidence of moderate or severe impairment of the left knee due to recurrent subluxation or lateral instability. 3. Upon receipt of the examination report, the RO should review the examination report to ensure that it is adequate for rating purposes. If the examination is inadequate for any reason, the RO should return the examination report to the examining physician and request that all questions be answered. 4. After completion of the requested development, the RO should review the veteran's claim on the basis of all the evidence of record. Consideration should be given to 38 C.F.R. §§ 4.40 and 4.45, and the provisions of Green, DeLuca and VAOPGCPREC 23-97. If the action taken remains adverse to the veteran in any way, he and his representative should be furnished an appropriate supplemental statement of the case to include the provisions of 38 C.F.R. § 3.655 which should be adhered to in the event that the veteran fails to appear for a scheduled examination without good cause. If the veteran fails to appear for a scheduled examination, the RO should include verification in the claims folder as to the date the examination was scheduled and the address to which notification was sent. The veteran and his representative should then be afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is informed, but he 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). The purpose of this REMAND is to ensure due process of law and to obtain additional information. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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. Iris S. Sherman 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).