Citation Nr: 0000472 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 94-02 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for service-connected left knee laxity, on appeal from the initial evaluation. 2. Entitlement to an increased evaluation for a service- connected scar on the right calf with excision of the sural nerve, currently evaluated as 20 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 September 1963 to February 1970. This appeal arises from an October 1986 rating decision of the Newark, New Jersey, regional office (RO) which assigned a 20 percent disability evaluation for left knee laxity, after granting service connection for the same. The notice of disagreement was received September 1987. The statement of the case was issued in March 1993. The veteran's substantive appeal was received in May 1993. This appeal also arises from a July 1992 rating decision that denied an increased evaluation of the veteran's service- connected right calf scar with sural nerve excision, evaluated as 20 percent disabling. The notice of disagreement was received November 1992. The statement of the case was issued in March 1993. At that time, the right calf disorder was misidentified as a right foot disability. The veteran's substantive appeal was received in May 1993. These matters were Remanded by the Board of Veterans' Appeals (Board) in January 1996 and October 1998 for the purpose of obtaining additional medical evidence and affording the veteran due process, and they have been returned to the Board for appellate review. The Board also notes that this appeal initially included the issues of entitlement to secondary service connection for a right knee disability and increased evaluations for the post- operative residuals of a laminectomy and a fracture of the right ankle. However, these issues were addressed and considered by the Board in an October 1998 decision. Therefore, issues of secondary service connection for a right knee disability, an increased evaluation for the post- operative residuals of a laminectomy, and an increased evaluation for a fracture of the right ankle are no longer the subject of appellate consideration. Finally, in a statement received in April 1999, the veteran filed a claim of service connection for a heart condition as secondary to his service-connected disabilities. The RO has yet to adjudicate this issue. The issue of the veteran's entitlement to service connection for a heart condition as secondary to service-connected disabilities is not inextricably intertwined with the current appeal, and it is referred to the RO for the appropriate action. REMAND In its October 1998 Remand, the Board requested that the veteran be afforded VA neurological and orthopedic examinations. Specific questions were asked in connection therewith. The Board requested that the neurological examiner discuss the severity of the veteran's service- connected right calf scar with excision of the sural nerve. Similarly, the orthopedic examiner was asked to discuss the severity of the veteran's left knee disorder and, in doing so, specifically state whether there was evidence of loss of range of motion and/or instability of the left knee. 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 orthopedic examiner discuss functional loss of the 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. There is no evidence that the aforementioned examinations have been conducted. Instead, the veteran was afforded a VA orthopedic examination in February 1999 for the purpose of evaluating his service-connected right knee disability. The report of that examination contained no findings pertaining to the left knee or right calf. 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 VA neurological and orthopedic examinations to properly determine the severity of his service-connected right calf and left knee disabilities. Although he has been examined previously for VA purposes, the importance of the new examinations to ensure adequate clinical findings should be emphasized to the veteran. The veteran should be advised, in that 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). Further, as referenced in the October 1998 Remand, the Court has held that a veteran can be rated separately for different manifestations of the same injury, where "none of the symptomatology for any one of [the] conditions is duplicative of or overlapping with the symptomatology of the other two conditions," and that such combined ratings do not constitute pyramiding prohibited by 38 C.F.R. 4.14 (1998). See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Regarding the knee, the VA Office of General Counsel has found that instability contemplated under Diagnostic Code 5257 of VA's Schedule for Rating Disabilities does not overlap with limitation of motion caused by arthritis under Diagnostic Code 5002, and, therefore, separate evaluations may be assigned. VAOPGCPREC 23-97 (July 1, 1997). As the evidence of record shows that the veteran experiences limitation of motion and instability of the left knee, and that he has been diagnosed as having degenerative arthritis in that joint, the RO should give careful consideration to the General Counsel opinion in its re-adjudication of this matter. Finally, citing the Board's October 1998 holding that service connection was warranted, the veteran was granted service connection for a right knee disorder in a December 1998 rating decision and assigned a 10 percent disability evaluation for the same. The effective date of the award was from October 11, 1990. The veteran received notice of this decision on January 7, 1999. Thereafter, following a February 1999 VA orthopedic examination, the RO issued an April 1999 rating action that granted service connection for arthritis of the right knee (by virtue of the Board's October 1998 decision) and assigned a noncompensable disability evaluation, effective in January 1992. He received notice of this decision on June 22, 1999. The veteran filed a notice of disagreement in October 1999 with regard to the reduction of the disability rating assigned his service-connected right knee disorder. To date, there is no evidence that the appellant has been furnished a Statement of Case on the issue of entitlement to restoration of a 10 percent disability rating for a right knee disorder, to include the issue of whether the reduction in rating was proper. As the filing of a notice of disagreement places a claim in appellate status, the Court has held that the RO's failure to issue a Statement of the Case is a procedural defect requiring remand. See Godfrey v. Brown, 5 Vet. App. 127, 132 (1993); see also Archibold v. Brown, 9 Vet. App. 124, 130 (1996). 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 left knee disorder and/or right calf scar with sural nerve excision since August 1997. All records not already included in the claims folder should be obtained, to include those from Toby B. Husserl, M.D., and any identified VA medical facility. Once obtained, all records must be associated with the claims folder. 2. The RO should schedule the veteran for special VA orthopedic and neurological examinations. The veteran should be properly notified of the date, time and place of the examinations in writing, and the RO should advise the veteran that, pursuant to federal regulations, failure to report for the examination, without good cause shown, may result in the denial of his claim for an increased rating. A copy of the notification letter should be associated with the claims file. The claims folders must be made available to the examiners for review prior to the examinations. Such tests as the examiners deem necessary should be performed. A. Special instructions for the orthopedic examiner: The examiner should address each matter below. 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 in degrees, with normal flexion being to 140 degrees and normal extension being to 0 degrees. II. If lateral instability or subluxation of the left knee is present, it should be described as either mild, moderate, or severe. III. The examiner should be asked to determine whether the left knee exhibits weakened movement, excess fatigability, or incoordination attributable to the service- connected disability; and, if feasible, these determinations should 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. IV. The examiner should also be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the left knee is used repeatedly over time. 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. B. Special instructions for the neurological examiner: The examiner should address each matter below. 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 examiner should identify the muscle group(s) affected by the excision of the sural nerve of the right calf. The examiner should express an opinion as to the severity of the injury to the muscle group(s) affected. II. The examiner should also state whether the excision of the sural nerve has caused complete or incomplete paralysis of said nerve. If there is incomplete paralysis, the examiner is requested to express an opinion as to whether the incomplete paralysis is mild, moderate, or severe. The examiner should also note whether the excision of the sural nerve has resulted in neuritis or neuralgia. If so, the examiner should state whether the neuritis or neuralgia is mild, moderate, or severe. III. The examiner should note the location of the veteran's service- connected right calf scar. The size of the scar should be reported. The examiner should indicate whether the scar is poorly nourished, tender and painful on objective demonstration, or whether the scar repeatedly ulcerates. The examiner should also note whether the scar affects functioning of the affected part. 3. The RO should determine which decision controls the granting of service connection for a right knee disorder. If it is determined that the December 1998 rating action is the correct decision, whereby a 10 percent disability evaluation was assigned effective in October 1990, no additional development is deemed warranted. However, if it is determined that the April 1999 rating action is the correct decision, the RO should furnish the veteran and his representative with a Statement of the Case (SOC) on the issue of entitlement to restoration of a 10 percent disability rating for a right knee disorder, to include the issue of whether the reduction in rating was proper. There should be included with this document information concerning the need to file a substantive appeal to these issues if the Board is to address them. A VA Form 9 should be provided for the veteran's use. The SOC should include citations to all pertinent regulations. The veteran must be informed that he must file a substantive appeal to the SOC if he wishes the Board to consider the issue addressed therein. 4. When the above developments have been completed, the case should be reviewed by the RO. 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 Code 5003 and 5257. See VAOPGCPREC 23-97. 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, including the knee codes pertaining to range of motion and other impairment of the knee. 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 afford due process and to obtain additional medical evidence. 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 & 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).