Citation Nr: 0004452 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-03 353A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for status post total arthroplasty of the left knee, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel REMAND The veteran served on active duty from May 1962 to May 1964 and from July 1964 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) following a July 1997 decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) which confirmed a previously assigned 30 percent rating for status post total arthroplasty of the left knee. The veteran contends that his left knee disability is more disabling than contemplated by the assigned 30 percent evaluation. Pursuant to the applicable diagnostic code, the minimum rating for a knee replacement (subsequent to the first year following implantation of the prosthesis) is a 30 percent disability evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (1999). In order for the veteran to receive a 60 percent rating under Diagnostic Code 5055, the evidence must demonstrate chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. Intermediate degrees of weakness, pain or limitation of motion are to be rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5256, 5261, or 5262 which provide for evaluation of ankylosis of the knee, limitation of extension of the knee, and impairment of the tibia and fibula, respectively. 38 C.F.R. § 4.71a, Code 5055 (1999). What is significant about the applicable rating criteria is that limitation of motion is a pertinent aspect of the evaluation. Id. Given such a rating requirement, consideration must now 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 rating 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 (1999). 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 rating 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 a rating 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 now required in the veteran's case. When seen by VA in September 1997, the veteran's complaints of chronic left knee pain were noted. Additionally, clinical findings relative to his left knee were made. Specifically, the examiner reported that the left knee had 90 degrees of flexion and 0 degrees of extension. It was also reported that McMurray's test was negative. X-rays at this time revealed a total prosthesis with intact femoral and tibial components and no fracture. However, no attempt was made to quantify the veteran's pain in terms that can be used to apply the pertinent rating criteria. Consequently, it may be said that the examination report was not responsive to the mandate of DeLuca. 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 rated 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. Therefore, because governing regulations provide that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran, a remand for a VA examination to ascertain the degree of left knee impairment is required. Green v. Derwinski, 1 Vet. App. 121 (1991); Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v. Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.326 (1999). It should also be pointed out that it is not clear from the available record whether a hearing before a RO hearing officer, scheduled for September 8, 1998, was ever conducted, and if so, whether a transcript of the hearing was completed. Clarification of this point should be sought. The case is REMANDED for the following actions: 1. The veteran should be allowed to supplement the record on appeal. Moreover, the RO should obtain and associate with the record all pre- and post-operative treatment records including any physical therapy records. 38 C.F.R. § 3.159 (1999). 2. The RO should obtain from the Social Security Administration the records pertinent to the veteran's claim for Social Security disability benefits as well as the medical records relied upon in adjudicating such a claim. 3. The veteran should be scheduled for a VA orthopedic evaluation. The examiner should review the claim's file, examine the veteran, and provide findings that take into account all functional impairments due to his total arthroplasty of the left knee, 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 loss due to such difficulties affecting the left knee should be equated with additional loss in range of motion (beyond that demonstrated clinically) due to these factors. See DeLuca, supra. Additionally, the examiner should indicate whether any surgical scar is superficial, poorly nourished, with repeated ulceration, or is tender and painful on objective demonstration. If the veteran has instability of the knee due to service- connected disability, this problem should be described as "slight," "moderate," or "severe." 4. The RO should ascertain whether a hearing was conducted in September 1998. If so, a copy of the transcript should be associated with the file. If not, an explanation for this should be set forth. In this regard, if the failure to conduct a hearing was for reasons other than the veteran failing to report without good cause, the veteran should be given another opportunity to appear at a hearing. 5. The RO should then review the claim on appeal. Particular consideration should be given by the RO to the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.71, 4.71a, 4.118 (1999) and the precepts of DeLuca, supra, and Esteban v. Brown, 6 Vet. App. 259 (1994). If any action taken remains adverse to the veteran, a supplemental statement of the case (SSOC) should be issued. If the veteran fails to report for the examination without good cause, the SSOC should specifically refer to the provisions of 38 C.F.R. § 3.655 (1999). After the veteran has been given an opportunity to respond to the SSOC, the claim's 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 issue. The appellant has the right to submit additional evidence and argument on the matter 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).