Citation Nr: 0001245 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 97-08 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased evaluation for service connected residuals of a gunshot to the right knee, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Bunch, Associate Counsel INTRODUCTION The veteran had more than 20 years of active duty terminating with his retirement in June 1984. This appeal arises before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) from a rating decision of December 1996 by the Roanoke, Virginia, Regional Office (RO). REMAND Initially, the Board finds that the veteran's claim for increased (compensable) rating for his service connected residuals of a gunshot wound right knee is well grounded, in that he has presented a plausible claim. 38 U.S.C.A. § 5107(a) (West 1991); Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), the Board is obligated to assist the veteran in the development of his claims. This includes the duty to conduct a thorough and contemporaneous medical examination under appropriate circumstances. See Littke v. Derwinski, 1 Vet. App. 90 (1991). The RO has assigned a 30 percent rating for the veteran's service-connected residuals of a gunshot wound right knee under Diagnostic Code (DC) 5257 of VA's Schedule for Rating Disabilities (Schedule). It is established United States Court of Veterans Appeals (Court) doctrine that, in assigning a disability evaluation, VA must consider the effects of the disability upon ordinary use and flare-ups, and the functional impairment due to pain, weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.40, 4.45 (1998). The current medical evidence confirms the presence of arthritis involving the right knee. The representative in an August 1999 Informal Hearing, in effect, raised the issues service connection for arthritis of the right knee and neurological deficiencies of the right lower extremity resulting from the common peroneal nerve entrapment on a secondary basis and requests separate ratings. The Board finds that these issues are intertwined with the issue in appellate status and must be adjudicated by the RO. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) In this regard, a VA General Counsel Opinion, VAOPGCPREC 23- 97 (July 1997), it was held that arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (5010) for limitation of motion and 5257. Also, VAOPGCPREC 9-98 (August 1998) indicates that when a knee disability is rated under Diagnostic Code 5257 it is not required that the claimant have compensable limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. It is only required that the claimant's degree of limitation of motion meet at least the criteria for a zero- percent rating. A hearing was held before a member of the Board sitting at Washington, D. C. in August 1999. At that time the veteran indicated that he was going to have a right knee replacement in September 1999. Subsequently received was documentation from the VA that the surgery was scheduled for September 2, 1999. In view of these facts, the Board is of the opinion that additional development is warranted. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should furnish the veteran the appropriate release of information forms in order to obtain copies of all VA, private, pertaining to current treatment for the right knee disability. The veteran should be informed that he is free to furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). 2. It is requested that the RO obtain copies of the medical records from the VA facility in Richmond, Virginia, covering the period from December 1998 to the present, to include the records concerning the right knee replacement. 3. It is requested that the RO schedule the veteran for a VA examination by an orthopedist for the purpose of ascertaining the severity of his service- connected right knee disability. The examination should include all necessary tests and studies, including X- rays. The examiner must be afforded an opportunity to review the veteran's claims file and Remand prior to the examination. Depending on the postoperative condition of the right knee, the knee should be examined for limitation of motion. The examiner should be requested to note the normal ranges of motion of the knee. Additionally, the examiner should be requested to determine whether the knee exhibit 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 lost or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. The examiner should also be asked to express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the knee is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202 (1995). It is further requested that the examiner identify any muscle group involved. The examiner is requested to render opinions as to whether it is as likely as not that service connected residuals of a gunshot wound right knee caused or aggravates the arthritis (present prior to the surgery), any neurological disability involving the right lower extremity (if diagnosed). Allen v. Brown, 7 Vet.App. 439 4. Thereafter, the RO should adjudicate the issues of service connection for arthritis of the right knee and any neurological disability involving the right lower extremity (if diagnosed) on direct and secondary bases, to include consideration of Allen and whether separate disability ratings are warranted. If the benefits sought are not granted, the veteran and his representative should be notified of that decision and of his appellate rights. 5. After the development requested above has been completed to the extent possible, the RO should readjudicate the issue currently on appeal, to again include consideration of the provisions set out in 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1998). If applicable, the RO should consider the rating criteria both the old and the new (effective in July 1997) rating criteria for muscle injury. Karnas v. Derwinski, 1 Vet. App. 308 (1991). If the benefits sought are not granted, the veteran and his representative should be furnished a supplemental statement of the case, and an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. 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. ROBERT P. REGAN Member, Board of Veterans' Appeals