Citation Nr: 0006544 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 93-07 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for a right knee disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from November 1971 to November 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board remanded this case to the RO in June 1995, October 1996 and December 1997 for further development. REMAND In the October 1996 remand, the Board requested that the veteran's claims file be reviewed prior to examination and an opinion provided concerning functional loss due to pain, weakness, fatigability, incoordination or pain on movement of the right knee, pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999) and DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiner was specifically requested to state if there was right knee instability. However, the March 1997 orthopedic examiner did not do so. The examiner said there was adequate pathology to support the level of the veteran's complaints, but did not clarify his statement. The December 1997 remand was essentially to rectify the above deficits, see Stegall v. West, 11 Vet. App. 268 (1998). The Board requested that the veteran undergo a VA orthopedic examination, by the March 1997 VA examiner, if possible, to determine the nature and severity of his service-connected right knee disability and clarify which of the veteran's complaints were supported by adequate pathology. The Board further requested that the veteran's claims folder and a copy of the remand be provided to the examiner prior to the examination, but the examiner in April 1998 reported that there were no records available to review. There was not full compliance with the 1997 remand as the claims folder was not referred to the physician who conducted the March 1997 examination for his review or any indication in the file regarding the doctor's unavailability. Moreover, the April 1998 examiner was not given the claims file for review prior to examination. The case, therefore, must once again be remanded. See Stegall. (Full compliance with the instructions contained in a Board remand must be carried out to the extent possible.) Additionally, in his report, the April 1998 orthopedic examiner referred to the "joint examination done in March of 1997 by me" but the claims file does not include an examination report from this physician. A note in the file indicates that a scheduled general medical examination by this doctor was canceled. The RO should determine if the VA doctor ever examined the veteran in March 1997 and, if so, request a copy of the examination report to associate with the claims file. The veteran's representative contends that the RO did not comply fully with the instructions contained in the previous remand, contrary to Stegall, because of the most recent orthopedic examiner's failure to report range of motion in degrees. However, the April 1998 orthopedist reported that the veteran's right knee had "full range of motion active and passive" and that "[n]ormal ranges of motion were elicited". In the Board's view, any failure by the examiner to report the range of motion in degrees is not prejudicial to the veteran's interests. Finally, the VA neurologic examiner in April 1998 suggested the possibility of having the veteran undergo an electromyograph (EMG) of his right leg to look specifically at the perineal nerve. The VA neurologist said, however, that the nerve was very difficult to look at above the knee and the EMG may not provide the results desired, but left the decision regarding whether the veteran should undergo an EMG to the RO. It is unclear if the RO contacted the doctor to clarify if the EMG should be performed. While the Board regrets further delay in its consideration of the veteran's appeal, in the interest of due process and fairness, it firmly believes his case must be REMANDED to the RO for the following actions: 1. The veteran should be permitted to submit or identify any other evidence in support of his claim. Medical evidence or opinion regarding his service-connected right knee disability would be helpful. 2. After the above action has been completed, the RO should refer the claims folder to the physician(s) who conducted the April 1998 and/or March 1997 VA orthopedic examinations. After reviewing the claims folder, the physician(s) should proffer the opinions requested below. (If, and only, if these physicians are unavailable, the RO should take the appropriate action to provide the veteran with another VA orthopedic examination. The new examiner should perform all tests and studies and range of motion should be reported in degrees of arc, with an explanation as to the normal range of motion of a knee. The examiner should elicit all of the veteran's subjective complaints regarding his right knee and offer an opinion as to whether there is adequate pathology to support the level of each complaint. The examiner should assess the overall functional impairment, if any caused by pain. In addition, the examiner should determine whether the right knee exhibits weakness, fatigability, incoordination, or pain on movement and, if possible, the determinations should be expressed in terms of the degree of functional loss due to any weakened movement, excess fatigability, incoordination or pain on increased use. The RO should make the veteran's claims file available to the VA medical center at which the veteran is to be examined and must instruct the medical center to provide the claims file to the examiner to review prior to examining the veteran. The examiner must note on the examination report that the veteran's claims file was reviewed. All indicated tests and studies should be completed.) If the March 1997 examiner is available, he should review his March 1997 VA examination report and clarify which of the veteran's complaints were in fact supported by adequate pathology. If the April 1998 orthopedic examiner is available, he should be asked to assess the overall functional impairment, if any, caused by the veteran's right knee pain and to assess the relationship, if any, between the veteran's service- connected right knee foreign body with the subjective complaints of pain and the diagnoses of probable right lateral meniscal injury and probable right anterior cruciate ligament partial tear. The April 1998 orthopedic examiner should be requested to clarify if he examined the veteran in March 1997 and, if so, to provide a copy of the examination report that should be associated with the claims file. 3. The RO should contact the VA neurologist who examined the veteran in April 1998 and clarify if the doctor believes an EMG of the veteran's right leg would be prove worthwhile in assessing the severity of his right knee disability. If the neurologist believes that the test should be performed, the RO should schedule the veteran for an EMG and any other recommended tests and studies. If the doctor does not believe that an EMG should be performed, an addendum to the effect should be provided and included in the claims file. All completed test reports should be associated with the claims folder. 4. Thereafter, the RO should review the VA orthopedic examination report to ensure that it satisfied the instructions contained herein. If it is not in full compliance, it should be returned for an addendum by the examiner or for another VA orthopedic examination. If the VA orthopedic examination report is in full compliance with the remand instruction and all other necessary development has been completed, the RO should readjudicate the issue of entitlement to an increased rating for a right knee disability. If the benefit sought on appeal is not granted to the veteran's satisfaction, a supplemental statement of the case should be issued and the veteran and his representative afforded an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. No action on the part of the veteran is required until he receives further notice. By this remand, the Board intimates no opinion as to any ultimate outcome warranted. 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 E. SULLIVAN 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).