Citation Nr: 0001962 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 96-41 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the service connected right knee disability. 2. Entitlement to a rating in excess of 10 percent for the service connected left knee disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from May 1992 to August 1994. This appeal arises from an April 1996 rating decision of the Roanoke, Virginia Regional Office (RO) that granted service connection for bilateral knee disability and assigned noncompensable evaluations, effective from the date of claim in November 1995. The case was remanded from the Board to the RO in November 1997 for additional development of the evidence. By rating decision in July 1999, 10 percent evaluations were assigned for right and left knee disability effective from November 1995. REMAND With regard to the claims for higher evaluations for the knees, it was noted in the November 1997 remand that the April 1996 VA rating examination did not comply with the requirements set out in DeLuca v. Brown, 8 Vet. App. 202 (1995). In that case, the Court held 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. A review of the April 1999 report of VA orthopedic examination shows that the veteran complained of swelling that occurred occasionally and primarily after strenuous activity. Swelling was relieved by taking aspirin and using ice. There would be stiffness the following morning. On one occasion, knee pain was so severe that the veteran was seen in an emergency room and he missed time from work; otherwise, the examiner noted that the knees did not limit the veteran in the pursuit of his occupation in any way. He did have occasional difficulty going up stairs but only after he had climbed numerous flights. This difficulty did not result with normal stair climbing. There had been occasional giving way, but not enough to cause the veteran to fall or experience problems. Although this report of examination conveyed classical DeLuca type complaints of functional loss due to weakness, fatigability, incoordination or pain of the knees following use or flare-ups, the examiner failed to provide additional clinical findings responsive to the holding in DeLuca. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand was necessary due to the RO's failure to follow the directives in the Board's remand. It was further held that where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Thus, the case must be returned to afford the veteran an additional VA orthopedic examination that is DeLuca compliant. Furthermore, as the veteran has reported suffering from occasional giving way of the knees, the RO should consider as part of the adjudication of the veteran's claims 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). Also in regard to the claim for higher evaluations for the service connected knees, the Court has held that unlike claims for increased ratings, "staged ratings" or separate ratings for separate periods of time based on the facts found may be assigned following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, as the April 1996 rating action appealed from was the initial grant of service connection for the veteran's knees, the RO should consider the proper evaluations to be assigned for the veteran's service connected disabilities pursuant to the Court's holding in Fenderson. With regard to the evaluations to be assigned to the service connected knees, VA has a duty to assist the veteran in the development of facts pertaining to his claim. The Court has held that the duty to assist the claimant in obtaining and developing available facts and evidence to support his claim includes obtaining all relevant medical records. Littke v. Derwinski, 1 Vet. App. 90 (1990). All current treatment records, if any, relative to the knees should be obtained. Under the circumstances described above, this case is REMANDED for the following: 1. The RO should obtain the names and addresses of all medical care providers who have treated the veteran for the left and right knee disabilities in recent years. After securing any necessary releases, the RO should obtain all records that are not already contained in the claims folder. Once obtained, all records should be permanently associated with the claims file. The records requested should include those from Chippenham Hospital in Richmond, Virginia concerning care given in 1995. 2. Following completion of the above action, the veteran should be afforded a VA orthopedic examination to determine the current severity of left and right knee disability. 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. X-rays should be taken of the knees. Normal range of motion findings should also be provided for the knees. 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 and right knees 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 slight, moderate or severe impairment of the left or right knees 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 claims on the basis of all of the evidence of record. Consideration should be given to 38 C.F.R. §§ 4.40 and 4.45, and the provisions of Fenderson, 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. 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).