Citation Nr: 0001399 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 97-24 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation for service- connected traumatic arthritis of the lumbosacral spine, evaluated as noncompensable prior to April 2, 1998, and currently evaluated as 20 percent disabling. 2. Entitlement to an increased evaluation for service- connected traumatic arthritis of the left hip, currently evaluated as 10 percent disabling. 3. Entitlement to an increased evaluation for service- connected traumatic arthritis of the right knee, currently evaluated as 10 percent disabling. 4. Entitlement to an increased evaluation for service- connected traumatic arthritis of the left knee with fracture of the femur, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. A. Herman, Associate Counsel INTRODUCTION The veteran had active military service from June 1952 and April 1956. This appeal arises from a May 1997 rating decision of the Columbia, South Carolina, regional office (RO) which denied increased evaluations for the veteran's service-connected traumatic arthritis of the left hip, traumatic arthritis of the right knee, and traumatic arthritis of the left knee with fracture of the femur, all of which were evaluated as 10 percent disabling. The rating decision also denied a compensable evaluation for traumatic arthritis of the lumbosacral spine. By a rating action dated in April 1998, the noncompensable evaluation assigned to traumatic arthritis of the lumbosacral spine was increased to 20 percent, effective in April 1998. This matter was Remanded by the Board of Veterans' Appeals (Board) in October 1998 for the purpose of obtaining additional factual and medical evidence, and it has been returned to the Board for appellate review. Finally, in a statement received in July 1997 (on VA Form 9), the veteran appears to have raised the issue of increased evaluations for his service-connected concussion residuals, fracture of the left distal radius and ulna, and fracture of the first and third metacarpals of the left hand. Nevertheless, none of the aforementioned issues are inextricably intertwined with the current appeal, and they are referred to the RO for the appropriate action. REMAND A well-grounded claim is one that is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In the context of a claim for an increased evaluation of a condition adjudicated service connected, an assertion by a claimant that the condition has worsened is sufficient to state a plausible, well-grounded claim. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The appellant in the instant case has stated well-grounded claims. Thus, VA is obligated to assist him in the development of these claims. 38 U.S.C.A. § 5107(a) (West 1991). In its October 1998 Remand, the Board requested that the veteran be afforded a VA orthopedic examination. Specific questions were asked in connection therewith. The examiner was specifically asked to state whether there was evidence of instability of the knees as well as the ranges of motion of the affected joints. Further, in compliance with the U.S. Court of Appeals for Veterans Claims (Court) holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board requested that the examiner discuss functional loss of the lumbosacral spine, left hip, right knee, and left knee due to pain and functional loss due to weakness, fatigability, incoordination or pain on movement. Again, the Court held in DeLuca that, in evaluating a service-connected disability involving a joint, the Board erred in 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. The Court found that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 (1999) and § 4.45 (1999), and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 (1999) does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The February 1999 VA orthopedic examination failed to clearly discuss the questions raised by the Board in its October 1998 Remand and, therefore, is inadequate for evaluation purposes. An examination must provide sufficient information to rate the disability in accordance with the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). Here, the veteran specifically complained of a progressive worsening of his low back. The examiner, however, made no comment on how the complaints of pain affected the range of motion of the veteran's low back. Similarly, while the examiner noted that the veteran had moderate pain with range of motion of the knees and mild pain with internal and external rotation of the left hip, he failed to address the question of whether the veteran would experience greater limitation of motion due to pain on repeated use or during periods of flare-ups. There were also no findings pertaining to functional loss due to pain. To this, the RO is advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the veteran must be afforded another VA orthopedic examination to properly determine the severity of his service-connected lumbosacral spine, left hip, right knee, and left knee disabilities. Further, having reviewed the evidence of record, the Board notes that the veteran has been seen on numerous occasions for complaints of neurological problems. Treatment notes from the Asheville VA Medical Center (VAMC) indicated that the veteran had decreased sensory and vibratory sensation in both feet. These complaints do not appear to have been adequately evaluated. The Court has held that the Board, in rendering its final decision, must consider independent medical evidence in support of recorded findings, rather than provide its own medical judgment in the guise of a Board opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The veteran should be afforded a VA neurological examination to determine the etiology of his neurological problems. Although he has been examined previously for VA purposes, the importance of a new examination to ensure adequate clinical findings should be emphasized to the veteran. The veteran is henceforth advised, in this regard, that failure to report, without good cause, for an examination scheduled in connection with a claim for an increased rating, shall result in denial of that claim. 38 C.F.R. § 3.655 (1999). Finally, the VA has a duty to assist a claimant in the development of facts pertinent to his or her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes the procurement of medical records to which the veteran has made reference. Littke v. Derwinski 1 Vet. App. 90 (1990). As this matter is being returned for additional medical examinations, the RO should obtain the veteran's current medical records pertaining to the treatment of his service-connected lumbosacral spine, left hip, right knee, and left knee disabilities. Although further delay is regrettable, under the circumstances described above, additional development is considered necessary. Therefore, this case is Remanded to the RO for the following development: 1. The RO should obtain the names and addresses of all VA and non-VA medical care providers who have treated the veteran for his service-connected lumbosacral spine, left hip, right knee, and left knee disabilities since February 1997. All non-VA records not already included in the claims folder should be obtained. 2. The RO should obtain the veteran's complete outpatient treatment records from the Dorn VAMC, Asheville VAMC, Salisbury VAMC, and any other identified VA facility since February 1997. Once obtained, all records must be associated with the claims folder. 3. After the foregoing development has been accomplished, the RO should schedule the veteran for special VA orthopedic and neurological examinations to determine the severity of his service-connected low back, left hip, and bilateral knee disabilities. The veteran and his representative should be notified of the date, time, and place of the examinations in writing. A copy of the notification letter should be associated with the claims file. a. General information for the examiners: The claims folders must be made available to the examiners for review prior to the examinations. A copy of this Remand decision should be provided to each physician. Such tests as the examiners deem necessary should be performed. b. Special instructions for the orthopedic examiner: The examiner should provide the answers/findings indicated below to each question or instruction posed. No instruction/question should be left unanswered. If the examiner finds that it is not feasible to answer a particular question or follow a particular instruction, he or she should so indicate and provide an explanation. I. The examination must include measurements of the ranges of motion of the left knee and right knee in degrees, with normal flexion being to 140 degrees and normal extension being to 0 degrees. II. The examiner should state whether the cartilage of the left and/or right knee is dislocated, with frequent episodes of "locking," pain, and effusion into the joint. III. If lateral instability or subluxation of the left and/or right knee is present, it should be described as either mild, moderate, or severe. IV. With regard to the veteran's low back disability, the examiner should be asked to state the ranges of motion of the lumbar spine in degrees. Moreover, the examiner should state the normal ranges of motion of the lumbar spine in degrees. V. With regard to the left hip, the examiner should indicate all ranges of motion, to include adduction and abduction. Reference to the normal ranges of these motions should be made. The examiner should also comment as to whether there is slight, moderate, or marked impairment of the left hip, as reflected by any malunion of the left femur. VI. The examiner should be asked to determine whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected lumbosacral spine, left hip, left knee, and/or right knee disabilities; and, if feasible, these determinations must be expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. VII. The examiner should be asked to express an opinion on whether pain in the low back, left, hip, left knee, and/or right knee could significantly limit functional ability during flare-ups or during periods of repeated use. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. c. Special instructions for the neurological examiner: Any neurological complaints or findings attributable to the veteran's service-connected arthritis of the lumbosacral spine should be identified. The examiner should state whether the veteran experiences intervertebral disc syndrome as a manifestation of his service-connected back disability. If so, the examiner should state whether the veteran experiences recurring attacks and the degree of intermittent relief he experiences between those attacks. The examiner should further state whether any intervertebral disc syndrome that may be present results in incapacitating episodes and the total duration of any of these episodes. The examiner should also be asked if there is evidence that the veteran has sciatic neuropathy with characteristic pain attributable to the service- connected back disability. If so, the examiner should state whether the sciatic neuropathy results in demonstrable muscle spasm, absent ankle jerk, or any other neurological finding. All factors upon which any medical opinion is based must be set forth for the record. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examinations do not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 5. When the above developments have been completed, the case should be reviewed by the RO. In evaluating the veteran's service-connected disabilities, the provisions of DeLuca and 38 C.F.R. §§ 4.40 and 4.45 must be discussed. Consideration should be given to the above referenced General Counsel Opinion in which it was determined that a claimant who has knee arthritis and instability may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. With respect to the low back disability, the RO should consider the claims for increased ratings in excess of noncompensable and 20 percent for the applicable time periods. If the decision remains adverse to the veteran, he and his representative should be issued a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond. The SSOC should include citation to all relevant regulatory provisions. If appropriate, the SSOC should also include the provision of 38 C.F.R. § 3.655. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional medical information. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. 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. BARBARA B. COPELAND 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).