BVA9500945 DOCKET NO. 93-06 392 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased (compensable) disability rating for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from December 1980 to December 1983 and from August 1987 to May 1989. This matter comes before the Board of Veterans' Appeals (Board) from an April 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied an increased (compensable) disability rating for a right knee disorder. REMAND The veteran contends that the RO committed error in denying his claim for an increased (compensable) disability rating for his service-connected right knee disorder. Specifically, he contends that he does not have full range of motion of the right knee, that it swells up and at times gives out on him causing him to fall. In this regard, the Board notes that the veteran reported on a November 1991 report of medical examination for disability evaluation that he experiences sharp pains and that a small knot appears on his knee and that it gets sore and then his leg will not straighten out all the way. He also noted that, if his foot is slightly pulled to the outside of his leg, his knee will pop out and that it is very painful. With regard to the November 1991 VA examination, the Board notes that, except for findings of a range of motion in the right knee from 0 to 140 degrees and of no tenderness, swelling, or deformities noted as to the scar from surgery conducted on the veteran's right knee during service, the examiner's findings regarding the right knee consist merely of history reported by the veteran. The examiner noted that the veteran complained of pain in the right knee while walking and of an inability to stand more than thirty minutes to one hour without experiencing pain in the right knee. In addition, the examiner noted that the veteran reported that he had had to give up a job as a cook in a restaurant because of pain in his knee, that his leg gives out on him while walking, and that his right knee is not any better as a result of the surgery he underwent during service. Although recording the veteran's complaints in detail, the examiner made no specific objective findings, based on his examination of the veteran's right knee, as to the effect, if any, of pain on the function of the veteran's right knee. The diagnosis noted was simply "p[ost] s[tatus] right meniscectomy (knee)." VA regulations state that it is "essential that the examination on which ratings are based adequately portray . . . functional loss" of the part of the body being examined with respect to the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance." 38 C.F.R. § 4.40 (1993). Section 4.40 further provides that functional loss may be due to "pain, supported by adequate pathology and evidenced by the visible behavior of the claimant." Section 4.45 states that in evaluating the disability of joints, which includes the right knee, factors to be considered include "[p]ain on movement." 38 C.F.R. § 4.45(f) (1993). The United States Court of Veterans Appeals has held that the Board may not base its conclusions about the degree of disability "on a VA medical examination which fail[s] to adhere to the mandate of 38 C.F.R. § 4.40 that examinations upon which ratings are based adequately portray functional loss due to pain, and determine whether pain 'was evidenced by the visible behavior of the claimant' . . . ." Voyles v. Brown, 5 Vet.App. 451, 453(1993), citing Quarles v. Derwinski, 3 Vet.App. 129, 140 (1992); see also Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). Given the veteran's complaints of pain and the requirements 38 C.F.R. §§ 4.40 and 4.45(f) (1993) that pain be considered in the evaluation of a disability and to ensure that the VA has met its duty to assist the claimant in developing facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following developments: 1. The RO should schedule the veteran for a special orthopedic examination. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The report of examination should include a detailed account of all manifestations of right knee pathology found to be present, including a description of the effect, if any, of the veteran's pain on the function and movement of the knee. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should provide a diagnosis of any current right knee disorder and a comprehensive report including complete rationale for any conclusions reached. 2. The RO should review the examination report and determine if it is adequate for rating purposes and in compliance with this remand. If not, the report should be returned for correction. Following completion of these actions and, if the decision remains unfavorable, the veteran and representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).