Citation Nr: 0003660 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-16 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an evaluation in excess of 10 percent for status post anterior cruciate ligament repair of the right knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from August 1994 until January 1997. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of August 1997 from the St. Louis, Missouri Regional Office (RO) which granted service connection for a right knee disorder, and assigned a 10 percent rating, effective from January 30, 1997. Notice of the determination was issued by the Fargo, North Dakota Medical and RO Center. The claims folder was subsequently transferred to the Detroit, Michigan Regional Office per the veteran's request after a change of residence. REMAND The veteran underwent VA examination of the right knee in May 1997 when it was noted the veteran complained of pain, including on prolonged walking. She also reported the right knee buckled. Facial grimacing of the veteran was noted on range of motion testing. However, it was opined that there was no evidence of fatigability or incoordination. The veteran's accredited representative avers that the appellant has not had the benefit of a comprehensive examination which adequately takes into consideration DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995), pertaining to pain contributing to functional loss. A review of the record discloses that on VA general medical examination in May 1997, the examiner noted that orthopedic consultation had been requested by the veteran with respect to right knee surgery. The record is unclear as to whether such consultation was accomplished. Under the circumstances, the case is REMANDED to the RO for the following actions: 1. The appellant should be afforded an examination by a VA specialist in orthopedics to determine the extent of any and all disability associated with her right knee. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The claims folder and a copy of this REMAND should be made available to the examiner in connection with the study of this case. The results of the physical examination and all clinical/diagnostic testing must be fully delineated and appropriate diagnoses rendered. In accordance with DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995), the examination report with respect to the right knee must identify any weakened movement, including weakened movement against varying resistance, excess fatigability upon use, incoordination, painful motion, and pain with use, and provide an opinion as to how those factors result in limitation of function. If the veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during episodes of flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If the examiner is unable to offer an opinion as to the nature and extent of any additional disability during a flare-up, that fact should be so stated. The examination report should be returned in a legible narrative format. 2. Prior to the examination, the RO must inform the veteran, in writing, of all consequences of her failure to report in order that she may make an informed decision regarding her participation in the scheduled examination. 3. The RO should review the examination report to determine compliance with this REMAND. If deficient in any manner, the report should be returned, along with the claims file, for immediate corrective action. 4. After completing any necessary development deemed appropriate in addition to that specified above, the RO should readjudicate the veteran's increased rating claim with application of DeLuca, as well as to determine whether "staged" ratings are warranted for manifestations of the service- connected disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If the disposition remains unfavorable to the veteran, the RO should furnish her and her representative with a supplemental statement of the case and afford them the opportunity to respond. The case should then be returned to the Board for further appellate consideration. The purpose of this remand is to develop a complete record and ensure due process. The Board intimates no opinion, either favorable or unfavorable, as to the ultimate disposition of the issue on appeal. 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. U. R. POWELL 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).