Citation Nr: 0004415 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-05 718 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to an increased evaluation for status after deep laceration of the left knee, with residual synovitis and meniscal damage, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from September 1958 to July 1961. This appeal comes to the Board of Veterans' Appeals (Board) from 1996 RO rating decisions that denied an increased evaluation for the left knee disability, and denied secondary service connection for right knee and back disabilities as not well grounded. The veteran submitted a notice of disagreement with these determinations in October 1997; the RO sent him a statement of the case in February 1998; and the veteran submitted a substantive appeal with the issue of entitlement to an increased evaluation for the left knee disability in March 1998. A review of the record does not show receipt of a timely substantive appeal with regard to the issues of secondary service connection for right knee and back disabilities. 38 C.F.R. §§ 20.200 and 20.302 (1999). Hence, the only issue certified to the Board for consideration is listed on the first page of this decision. Correspondence from the representative received in 1999 constitutes an application to reopen the claims for secondary service connection for the right knee and back disabilities. The issues of whether new and material evidence has been received to reopen claims for secondary service connection for right knee and back disabilities have not been adjudicated by the RO and will not be addressed by the Board. These matters are referred to the RO for appropriate action. REMAND The evidence shows that the veteran has painful motion of the left knee. The report of his VA medical examination in February 1998 is inadequate to determine the severity of the left knee disability. VA has the duty to provide the veteran with an examination to obtain sufficient clinical findings to determine the severity of his left knee disability. DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the Court) held that in evaluating a service-connected disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 (1999) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (1999). The Court held that a diagnostic code based on limitation of motion does 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 (1999) does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is 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; if feasible, these determinations were to be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. In view of the above, the case is REMANDED to the RO for the following actions: 1. The veteran should be scheduled for a VA compensation examination to determine the severity of his left knee disability, and to obtain an opinion from the examiner as to the severity of this condition. Specifically, the examiner should express an opinion as to whether or not there is severe painful motion or weakness of the left knee. The examiner should be asked whether pain or weakness significantly limits functional ability during flare-ups or when the left knee is used repeatedly over a period of time. The examiner should state the degree of instability, if any, and whether the laceration scar is tender or otherwise symptomatic. The examiner should also be asked to determine whether the joint exhibits weakened movement, excess fatigability or incoordination; if feasible, these determinations should be expressed in terms of additional range- of-motion loss due to any weakened movement, excess fatigability or incoordination. The examiner should support the opinions by discussing medical principles as applied to specific medical evidence in this case. In order to assist the examiner in providing the requested information, the claims folder must be made available to the physician and reviewed prior to the examination. 2. After the above development, the RO should review the claim for an increased evaluation for the left knee disability. This review should reflect consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999). If action remains adverse to the veteran, an appropriate supplemental statement of the case should be sent to him and his representative. The veteran and his representative should be afforded an opportunity to respond to the supplemental statement of the case before the file is returned to the Board. The appellant 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). 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. J. E. Day 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).