Citation Nr: 0001279
Decision Date: 01/14/00	Archive Date: 03/02/00

DOCKET NO. 98-09 282               DATE JAN 14, 2000

On appeal from the Department of Veterans Affairs Regional Office
in Buffalo, New York

THE ISSUES

1. Entitlement to an increased rating for chronic right lumbosacral
and sacroiliac strain, currently evaluated as 20 percent disabling.

2. Entitlement to an increased rating for residuals of internal
derangement of the left knee, currently evaluated as 10 percent
disabling.

3. Entitlement to an increased rating for periarthritis of the
right hip, currently evaluated as 10 percent disabling.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

D. M. Casula, Associate Counsel

INTRODUCTION

The veteran had active service from September 1950 to May 1952.

This matter comes before the Board of Veterans' Appeals (Board)
from a February 1998 rating decision of the Buffalo, New York
Regional Office (RO) of the Department of Veterans Affairs (VA)
which denied a rating in excess of 20 percent for the service-
connected chronic right lumbosacral and sacroiliac strain, and
denied ratings in excess of 10 percent for the service-connected
residuals of an internal derangement of the left knee and the
service-connected periarthritis of the right hip.

REMAND

VA has a duty to assist the veteran in the development of facts
pertaining to his claim. 38 U.S.C.A. 5107(a) (West 1991 & Supp.
1999); 38 C.F.R. 3.103(a) (1999). The U.S. Court of Appeals for
Veterans Claims (Court) has held that the duty to assist the
veteran in obtaining and developing available facts and evidence to
support his claim includes obtaining medical records to which he
has referred and obtaining adequate VA examinations. The Court also
stated that the Board must make a determination as to the adequacy
of the record. Littke v. Derwinski, 1 Vet. App. 90 (1990). The duty
to assist the veteran includes the obligation to obtain ongoing
treatment records while a claim is pending. Murincsak v. Derwinski,
2 Vet. App. 363 (1.992). Thus, any additional relevant medical
records should be secured on remand.

The RO's attention is directed to the Court's decision in the case
of DeLuca v. Brown, 8 Vet.App. 202 (1995). Therein, the Court held
that ratings based on limitation of motion do not subsume 38 C.F.R.
4.40 (1999) or 38 C.F.R. 4.45 (1999). It was specified that the
medical examiner should be asked to determine the extent of
functional disability due to pain and determine whether the joint
in question exhibited weakened movement, excess fatigability or
incoordination, and

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such determinations, if feasible, should be expressed in terms of
the degree of additional range-of-motion loss or ankylosis due to
any weakened movement, excess fatigability or incoordination. It
was also held that 38 C.F.R. 4.14 (1999) (avoidance of pyramiding)
did not forbid consideration of a higher rating based on greater
limitation of motion due to pain on use, including during flare-
ups.

The Board finds that the VA orthopedic examination in 1997 was not
conducted according to the mandates of DeLuca. In the June 1997 VA
examination report the examiner noted the veteran's complaints of
low back pain and limitation of range of motion of the low back,
and his complaints of slight left knee pain and limitation of left
knee motion. The examiner did not,, however,, indicate whether
range of motion of the low back or the left knee was @er limited by
pain, and if so, whether such determinations could be portrayed in
terms of the degree of additional range of motion loss due to pain.
The examiner noted that the ranges of motion of the right hip were
pain free and of normal strength. However, the examiner did not
indicate whether the low back, left knee, or right hip exhibited
weakened movement, excess fatigability, or incoordination, or
whether it was feasible to express such findings in terms of the
degree of additional range of motion loss, pursuant to DeLuca. In
view of the foregoing, the veteran should be afforded a VA
examination in compliance with the mandates of DeLuca, to evaluate
the current severity of the veteran's service-connected
disabilities.

The VA General Counsel has recently addressed the question of
multiple ratings when evaluating knee disabilities. VAOPGCPREC 23-
97 (July 1, 1997). It was specifically held that arthritis and
instability of the knee may be rated separately under Diagnostic
Codes 5003 and 5257. Such an opinion suggests that separate ratings
may be awarded for limitation of motion and instability. The RO
should therefore consider this General Counsel opinion in rating
the veteran's service- connected left knee disability.

Accordingly, the case is REMANDED to the RO for the following
actions:

1. The RO should contact the veteran and request that he submit the
names and addresses of all health care

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providers, VA or private, who have treated him for his low back,
left knee, and right hip disabilities since April 1997. After
securing the necessary releases, the RO should request copies of
any previously unobtained medical records for association with the
claims folder. This should specifically include complete treatment
records from the Wilkes-Barre VA medical center.

2. Thereafter, the veteran should be afforded a VA orthopedic
examination, in order to ascertain the nature and severity of his
service-connected low back, left knee, and right hip disabilities.
The claims folder must be reviewed by the examiner prior to
conducting the examination (and the examiner should specifically
note that the file has been reviewed). All indicated special tests
and studies should be conducted, to include range of motion studies
expressed in degrees and in relation to normal range of motion. The
examiner should note whether there are any further limitations due
to pain and, if so, quantify the degree of additional impairment
due to pain. The examiner should be asked to determine whether the
veteran's low back, left knee, or right hip exhibit weakened
movement, excess fatigability, or incoordination. and if feasible,
these determinations' should be expressed in terms of the degree of
additional range of motion loss due to any weakened movement,
excess fatigability, or incoordination. The examiner should also
provide an opinion as to whether pain could significantly limit
functional ability. during flare-ups or when the low back, left
knee,, or right hip are used repeatedly over a period of time.
These determinations should also, if feasible, be portrayed in
terms of the degree of additional range of motion loss due to pain
on use or during flare-ups.

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3. Following the completion of all development, the RO should
review the veteran's claims based on all of the evidence of record
with consideration specifically being given to whether the veteran
may be entitled to separate ratings for instability and limitation
of motion of the left knee. If any action taken remains adverse to
the veteran, he and his representative should be provided a
supplemental statement of the case and a reasonable period of time
for response.

Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant need take no action
until otherwise notified. Quarles v. Derwinski, 3 Vet. App. 129,
141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). 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). The purpose of this
REMAND is to obtain additional information and to ensure due
process of law. No inference should be drawn regarding the final
disposition of the claim as a result of this action.

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, 465 8 (1994), 38 U.S.C.A. 5101 (West Supp. 1999)
(Historical and Statutory Notes).

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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,
pares. 8.44-8.45 and 38.02-38.03.

C. W. SYMANSKI
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).

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