Citation Nr: 0000111	
Decision Date: 01/04/00    Archive Date: 12/28/01

DOCKET NO.  99-03 121	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

Entitlement to an increased disability evaluation for 
chondromalacia patella, left, currently rated as 20 percent 
disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Howard M. Scott, Associate Counsel


INTRODUCTION

The veteran had active service from September 1981 to June 
1984, with over 3 years prior active service.

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from a November 1998 rating decision by 
the  Cleveland, Ohio, Regional Office (RO) of the Department 
of Veterans Affairs (VA).  A notice of disagreement was 
received in December 1998, a statement of the case was issued 
in December 1998, and a substantive appeal was received in 
February 1999.  


REMAND

It appears that the veteran's left knee disability is 
currently rated under the provisions of Diagnostic Code 5257 
which is for impairment of the knee with recurrent 
subluxation or lateral instability.  However, the Board notes 
that although VA radiological study of the left knee in 
September 1998 reportedly showed no arthritic changes, the 
claims file includes a March 1998 private x-ray report which 
lists an impression of degenerative joint disease of the 
medial compartment and patellofemoral joints.  

The apparent discrepancy in the interpretation of x-ray 
studies may be of critical importance in light of opinions by 
VA's General Counsel which are to the effect that under 
certain circumstances, when a knee disability rated under 
Diagnostic Code 5257 and there is also evidence of arthritis 
based on x-ray findings, a separate rating for arthritis may 
be warranted.  See VAOPGCPREC 9-98 (August 14, 1998), 
VAOPGCPREC 23-97 (July 1, 1997).

The Board also notes that although the report of the 
September 1998 VA examination noted some patellofemoral pain 
on motion, there was no indication of the point motion 
resulted in such pain.  It is therefore difficult to 
ascertain from this examination report whether there is 
additional functional loss due to pain and, if so, to what 
extent.  

The veteran's claim for an increased rating is by its nature 
well-grounded.  Proscelle v. Derwinski, 2 Vet.App. 629, 632 
(1992).  Accordingly, the VA has a duty to assist the 
veteran.  38 U.S.C.A. § 5107(a).  The duty to assist includes 
ensuring an adequate medical record to allow for proper 
review. 

For the reasons set forth above, the case is hereby REMANDED 
to the RO for the following actions:

1.  Any VA medical records (not already 
in the claims file) documenting any 
ongoing treatment for left knee 
complaints should be associated with the 
claims file.  

2.  The veteran should be requested to 
furnish the names and addresses of all 
private medical care providers who have 
treated him for left knee problems since 
July 1998.  After obtaining appropriate 
consents for the release of medical 
records, the RO should contact any 
identified private medical care providers 
and request copies of all pertinent 
treatment records.  

3.  After completion of the above, the 
veteran should be scheduled for a 
comprehensive VA orthopedic examination 
to ascertain the nature and severity of 
his left knee disability.  It is 
imperative that the claims file be made 
available to the examiner for review in 
connection with the examination, and all 
indicated special tests and studies, 
including x-ray studies, should be 
accomplished.  The examiner should 
clearly report all clinical findings with 
particular attention to any evidence of 
recurrent subluxation, lateral 
instability, and limitation of motion.  
With regard to limitation of motion, the 
examiner should not only report the range 
of motion noted on examination, but he or 
she should also indicate, in degrees, the 
point at which any pain effectively 
limits motion.  If possible, the examiner 
should also comment on whether or not 
there is additional functional loss due 
to weakness, fatigue and or 
incoordination.  The examiner should also 
clearly report whether or not there is x-
ray evidence or arthritis. 

4.  After completion of the above, the RO 
should review the expanded record and 
determine whether a higher rating and/or 
separate ratings are warranted under all 
applicable laws, regulations, and 
opinions of VA's General Counsel.  The 
veteran and his representative should be 
furnished an appropriate supplemental 
statement of the case and be afforded an 
opportunity to respond.  Thereafter, the 
case should be returned to the Board for 
appellate review. 

The purpose of this remand is to assist the veteran with the 
development of evidence in connection with his claim.  The 
veteran and his representative are free to submit additional 
evidence and argument in connection with this appeal.



		
ALAN S. PEEVY 
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Veterans Appeals.  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).