Citation Nr: 0007095 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 96-13 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUES 1. Evaluation of right knee anterior cruciate ligament repair residuals, evaluated as 10 percent disabling from April 23, 1995. 2. Evaluation of right knee arthritis, evaluated as 10 percent disabling from April 23, 1995. 3. Evaluation of left knee anterior cruciate ligament repair residuals, evaluated as 10 percent disabling from April 23, 1995. 4. Evaluation of left knee arthritis, evaluated as 10 percent disabling from April 23, 1995. ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel REMAND The veteran served on active duty from August 1989 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) following a July 1995 decision of the Washington, D.C. Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for right and left knee surgery residuals. The right and left knee disabilities were each rated as non-compensably disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective from April 23, 1995. Subsequently, by an October 1995 decision, the RO re-characterized the veteran's service-connected knee disabilities as ligament repairs with arthritis and assigned 10 percent evaluations under 38 C.F.R. § 4.71a, Diagnostic Code 5010 (traumatic arthritis), effective from April 23, 1995. Thereafter, by a September 1998 decision, the RO assigned 10 percent evaluations for right and left knee arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5010 (traumatic arthritis) and separate 10 percent evaluations for anterior cruciate ligament repairs under 38 C.F.R. § 4.71a, Diagnostic Code 5261 (limitation of extension). These evaluations were made effective from April 23, 1995. After receiving notice of the September 1998 action, the veteran submitted a statement in October 1998 in which he indicated that his appeal had been satisfied as to the following issues: "5256, 5260, 5261, 5010, 5003." Presumably, the mention of these five 4-digit numbers was a reference to Diagnostic Codes pertaining to his knee disabilities under 38 C.F.R. § 4.71a. However, it is not entirely clear what he meant by such a statement. As noted above, the RO rated each knee under Diagnostic Codes 5010 and 5261, both of which were mentioned in the veteran's October 1998 statement. Consequently, if the veteran meant to indicate that he was entirely satisfied with the September 1998 rating decision, there would be no remaining issue for the Board to address. Nevertheless, what is curious about the list of Diagnostic Codes set out by the veteran is that each addresses limitation of motion, but none addresses instability or cartilage disability, both of which the veteran previously noted in his substantive appeal. Therefore, if the veteran specified the limitation of motion codes as an indication that he was satisfied that his disability had been properly related in that regard, but not with respect to other symptoms such as instability or symptoms due to cartilage impairment, further action by the Board is indicated. Action by the RO to clarify the veteran's intent is required. As noted above, what is significant about the way the RO has variously characterized the service-connected knee disabilities is that both limitation of motion and other symptoms due to anterior cruciate ligament repairs has been considered. If the veteran desires to continue his appeal with respect to impairment ratable as limitation of motion, consideration must be given to the degree of any functional loss caused by pain such as has been repeatedly complained of by the veteran. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion require consideration of functional losses due to pain, etc.). Specifically, when evaluating musculoskeletal disability, it should be remembered that "a part which becomes painful on use must be regarded as seriously disabled." 38 C.F.R. § 4.40 (1998). In DeLuca v. Brown, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) noted that the VA examination relied on to rate the veteran's disability had merely included findings as to the range of motion without accounting for factors enumerated in § 4.40. The Court cited the case of Bierman v. Brown, 6 Vet. App. 125, 129 (1994) in which 38 C.F.R. § 4.10 was quoted for the proposition that a evaluation examination must include a "full description of the effects of disability upon the person's ordinary activity." DeLuca, at 206 (Emphasis added). In order to effectuate this requirement, the Court explained that, when the pertinent diagnostic criteria provide for an evaluation on the basis of loss of range of motion, determinations regarding functional loss are to be "'portray[ed]' (§ 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. This is what is required in the veteran's case, provided he is not satisfied with the ratings made on account of limitation of motion. When seen by VA in September 1995 and April 1997, the veteran's complaints of knee pain, swelling, and buckling were noted. Additionally, clinical findings relative to his knees were made. Specifically, in September 1995 range of motion studies of the knees disclosed "extension to just about" 0 degrees and flexion to 100 degrees. X-rays revealed status post bilateral cruciate repair associated with mild bilateral degenerative osteoarthritis. Similarly, when examined by VA in April 1997, knee range of motion studies disclosed extension to 10 degrees and "less than" 0 degrees, and flexion to 102 degrees and 110 degrees, respectively. It was also reported that there was tenderness to palpation over both patellar tendons. X-rays revealed status-post bilateral cruciate repair. However, no attempt was made to quantify the veteran's pain at either of these examinations in terms that can be used to apply the pertinent rating criteria. Consequently, it may be said that the examination reports were not responsive to the mandate of DeLuca that the examiner express the functional losses experienced by the veteran in terms that can be used to apply the criteria of the applicable diagnostic codes. For example, while a veteran may have almost normal range of motion demonstrated in a clinical setting, his functional loss due to pain or flare-ups may be comparable to a disability level contemplated by more severe limitation of motion. If so, he must be evaluated accordingly. The only way to apply this rule is for the examiner to provide his/her best judgment as to the level of disability caused by the pain or flare-ups, etc., and to report such an opinion in terms that can be used to apply the rating criteria. The Board notes that separate ratings may be assigned for instability and loss of motion when rating knee disabilities. See Esteban v. Brown, 6 Vet. App. 259 (1994) and VAOPGCPREC 23-97 (July 1, 1997). Moreover, as already reported, the RO awarded the veteran separate compensable ratings for his knee disabilities. See RO decision entered in September 1998. However, it is not clear why the RO assigned these separate ratings under Diagnostic Codes that both contemplate pain and limitation of motion - Diagnostic Code 5010 and Diagnostic Code 5261. See 38 C.F.R. § 4.71a (1999). If the veteran desires to continue his appeal as to problems other than those contemplated by limitation of motion/pain, further action by the RO to obtain evidence in that regard and to re- adjudicate the veteran's claims is required. The case is REMANDED for the following actions: 1. The veteran should be asked to clarify what about the September 1998 rating decision he is satisfied with, and what he yet desires to pursue, if anything, on appeal. If the veteran does not withdraw all aspects of his appeal, the RO should continue with the development requested below. If he expresses a desire to withdraw his appeal in its entirety, the RO need not take the actions set forth below. 2. The veteran should be scheduled for a VA orthopedic evaluation. The examiner should review the claims file, examine the veteran, and provide findings that take into account all functional impairments due to his right and left knee anterior cruciate ligament repairs and arthritis, including problems such as pain, incoordination, weakness, fatigability, abnormal movements, etc. See 38 C.F.R. §§ 4.40, 4.45 (1999). The examiner should identify each functional debility legitimately experienced by the veteran due to service-connected disability. Functional losses, other than instability, should be equated with additional loss in range of motion due to these factors. See DeLuca, supra. If it is not possible to equate the difficulties affecting the right and left knee with addition loss in range of motion, the examiner should say so. The examiner should also state whether the veteran's right or left knee has subluxation or lateral instability, and if so, whether it is "severe," "moderate," or "slight." Next, the examiner should state whether the veteran's right or left knee has frequent episodes of locking, pain, or effusion into the joint due to cartilage impairment. The examiner should also indicate whether any post-operative scars are poorly nourished, have repeated ulceration, or are tender and painful on objective demonstration. 3. The RO should then review the claims regarding the knees. Adjudication should be undertaken as to all aspects of the veteran's knee ratings not withdrawn from appeal by the veteran. Particular consideration should be given by the RO to the provisions of 38 C.F.R. § 4.14 (1999) and the precepts of Esteban, supra, as well as VAOPGCPREC 23-97 (July 1, 1997). Consideration should also be given to the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.71, 4.71a, 4.118 (1999). Additionally, consideration should be given to the possibility of "staged" ratings in accordance with Fenderson v. West, 12 Vet. App. 119 (1999). If any benefit sought is denied, a supplemental statement of the case (SSOC) should be issued. After the veteran has been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until further notice is received. The purpose of this remand is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issues. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. 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 or by the Court 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. MARK F. HALSEY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).