Citation Nr: 0003981 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 98-21 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 20 percent for right knee status post partial medial meniscectomy with chondromalacia and traumatic arthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. M. Cote, Associate Counsel INTRODUCTION The veteran had active service from September 19, 1973 to September 30, 1997. This matter comes before the Board of Veterans' Appeals (Board) from a November 1997 rating decision of the Houston, Texas, Department of Veterans' Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for status post right medial meniscus tear debridement and assigned a noncompensable rating, effective October 1, 1997. In May 1998 the RO granted an increased (compensable) evaluation of 10 percent rating for right knee status post partial medial meniscectomy with chondromalacia and osteoarthritis, effective October 1, 1997. In September 1999 the RO affirmed the 10 percent rating for right knee status post partial medial meniscectomy with chondromalacia, and assigned a separate 10 percent rating for traumatic arthritis, effective October 1, 1997. On a claim for an increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, even though the RO issued a decision awarding a higher rating, the veteran's appeal proceeds. Id. REMAND 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 United States Court of Appeals for Veterans Claims (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. A review of the record discloses that the veteran was last examined for VA compensation purposes in March 1998. He complained of ongoing pain since surgery in service. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. The Court has held that where the evidence does not adequately evaluate the current state of the condition, VA must provide a new examination. Olsen v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Court has further held that when a diagnostic code provides for compensation based solely upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40, 4.45 (1999) must also be considered, and reexaminations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the most recent VA examination of the veteran was somewhat thorough, specific findings relative to the requirements set forth in DeLuca, and 38 C.F.R. §§ 4.40, 4.45 were not included in the examination report. The Board is of the opinion that an examination addressing the above concerns would materially assist in the adjudication of the claimant's appeal. Therefore, pursuant to VA's duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999), the Board will not decide the issue prepared and certified for appellate review pending a remand of the case to the RO for further development as follows: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, inpatient and outpatient, who may have additional records of treatment for his service-connected right knee disability. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment records. 3. The RO should arrange for a VA orthopedic examination of the veteran by an orthopedic surgeon or other appropriate specialist for the purpose of ascertaining the current nature and extent of severity of his service- connected status post partial medial meniscectomy with chondromalacia and traumatic arthritis. The claims file, copies of the criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999), and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. Any further indicated special studies should be conducted. The examiner should record pertinent medical complaints, symptoms, and clinical findings, including specifically active and passive range of motion, and comment on the functional limitations, if any, caused by the appellant's right knee disability in light of the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59. It is requested that the examiner provide explicit responses to the following questions: (a) Does the service-connected right knee disability involve only the joint structure, or does it involve the muscles and nerves? (b) Does the service-connected right knee disability cause weakened movement, excess fatigability, and incoordination, and if so, can the examiner comment on the severity of these manifestations on the ability of the appellant to perform average employment in a civil occupation? If the severity of these manifestations cannot be quantified, the examiner must so indicate. (c) With respect to subjective complaints of pain, the examiner is requested to specifically comment on whether pain is visibly manifested on movement of the joints, the presence and degree of, or absence of, muscle atrophy attributable to the service- connected right knee disability, the presence or absence of changes in condition of the skin indicative of disuse due to the service-connected disability, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service- connected right knee disability. (d) The examiner is also requested to comment upon whether or not there are any other medical or other problems that have an impact on the functional capacity affected by the service- connected right knee disability, and if such overlap exists, the degree to which the nonservice-connected problem creates functional impairment that may be dissociated from the impairment caused by the service- connected disability. If the functional impairment created by the nonservice-connected problem cannot be dissociated, the examiner should so indicate. Any opinions expressed by the examiner must be accompanied by a complete rationale. 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issue of entitlement to an initial evaluation in excess of 20 percent for status post partial meniscectomy with chondromalacia and traumatic arthritis. The RO should document its consideration of the applicability of 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, 4.59 (1999), and Fenderson, supra. If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH 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).