Citation Nr: 0007954 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 94-24 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a separate rating for postoperative instability of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from June 1978 to June 1985. He also had subsequent periods of unverified active duty for training in the reserves. The Board of Veterans' Appeals (Board) first notes that in its decision in January 1999, the Board specifically denied a claim for an evaluation in excess of 30 percent for postoperative residuals of a right knee disorder. Concurrent with this denial, however, the Board also observed that in view of the regional office (RO)'s consideration of 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999), the record and the changes in the law had raised the additional issue of whether there was entitlement to a separate rating for instability of the knee. As this matter had not been addressed by the RO, the Board found that this issue had to be remanded to the RO for its initial consideration under 38 C.F.R. § 20.1304(c) (1999), and the RO thereafter considered the issue of entitlement to a separate rating for instability of the right knee following a Department of Veterans Affairs (VA) medical examination that was afforded the veteran in May 1999. Based on the results from this examination, the RO issued June 1999 supplemental statement of the case which denied entitlement to a separate rating for instability of the right knee. At this time, the RO indicated that no instability was found on examination, and that a separate rating for instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999) was not warranted. Thereafter, a July 1999 statement from the veteran discusses various right knee symptoms and treatment, and further indicates that this statement was provided in response to the supplemental statement of the case issued in June 1999. Following this, the RO issued a December 1999 supplemental statement of the case with respect to the issue of entitlement to an evaluation in excess of 30 percent for arthritis of the right knee, and the veteran's service representative referred to the issue on appeal as entitlement to an increased evaluation for service-connected right knee disability in February and March 2000. In light of the above, the Board would like to take this opportunity to make it clear that the sole issue remaining on appeal is the issue of entitlement to a separate rating for postoperative instability of the right knee. The issue of entitlement to an increased rating for the veteran's right knee disorder other than as to entitlement to a separate rating was specifically and clearly denied by the Board in its January 1999 decision. Consequently, any claim for an increased rating other than as to entitlement to a separate rating, would have to be based on the timely appeal or other appropriate challenge of this aspect of the January 1999 Board decision, or by pursuit of a claim to reopen the issue of entitlement to an increased overall rating. In this regard, the veteran and his representative are admonished that if it is their desire to have the veteran's statement of July 1999 serve as an application to reopen a claim for an overall increased rating for the veteran's right knee disability, it is the Board's finding that the December 1999 supplemental statement of the case constituted the initial adjudication and denial of this claim, and that a notice of disagreement must now be timely filed with respect to that decision in order for the veteran to preserve his rights of appeal. Although the subsequent filings of the veteran's representative in February and March 2000 refer to the issue of entitlement to an increased rating, it is clear that this issue is addressed in the context of the current appeal, and not in the development of an appeal of any new claim to reopen. Therefore, the Board does not find that either of these documents may be construed as a notice of disagreement as to the RO's denial of an evaluation in excess of 30 percent in the December 1999 supplemental statement of the case. REMAND As for the issue remaining on appeal, although the Board notes that the May 1999 VA examiner found no objective findings of laxity in the right knee, private medical records reflect that the veteran underwent surgery to the right knee approximately 11 days after the May 1999 VA examination. In addition, while a June 1999 private medical statement outlines the damage found to the knee at the time of the surgery, that the veteran was being placed on certain medication, and that he would be able to rehabilitate by himself, the physician then simply comments that the veteran would "be out of commission until the first of October." As there are no additional post-surgical treatment records, the Board finds it difficult to properly assess the post- surgical status of the veteran's right knee. The Board further notes that in his July 1999 statement, the veteran indicated that his right knees was still very unstable and that he experienced chronic pain, constant swelling and infection. Where the veteran claims a disability is worse than originally rated, and the available evidence is too old to adequately evaluate the state of the condition, the VA must provide a new examination. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Olson v. Principi, 3 Vet. App. 480, 482 (1992). The Board also notes that the duty to assist the veteran in obtaining and developing facts and evidence to support his claim includes an adequate VA examination. Littke v. Derwinki, 1 Vet. App. 90 (1990). Unfortunately, while the May 1999 VA examination was originally clearly adequate for rating purposes, it was thereafter rendered inadequate as a result of the subsequent surgery without additional evidence of the veteran's response to that surgery. Consequently, based on all of the above, the Board finds that further medical development in this matter is now warranted, and that part of this development should include a new and comprehensive VA medical examination. Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, the case is remanded to the RO for the following development: 1. 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). 2. The RO should obtain any recent pertinent medical records from all medical care providers who have treated the veteran's right knee since May 1999. If there are such records that are not already of record, said records should be obtained and associated with the claims folder. 3. The RO should then arrange for a VA examination by an appropriate physician to determine the nature and severity of the veteran's right knee disorder. All indicated studies must be conducted. The claims file, or copies of pertinent documents located therein, and a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should record pertinent medical complaints, symptoms, and clinical findings, including express findings as to the presence or lack of objective indications of subluxation or lateral instability of the knee. In particular, it is requested that the examiner provide responses to the following: If instability of the right knee is currently present, the examiner should provide an opinion as to the degree of medical probability that the instability is causally related to service or to the service-connected right knee disability. Any opinions expressed must be accompanied by a complete rationale. The veteran is advised that failure to report for the scheduled examination may have adverse consequences to his claim as the information requested on this examination addresses questions of causation and symptomatology that are vital in these claims. Moreover, the governing regulation provides that failure to report without good cause for an examination in conjunction with a claim for an increased rating will result in the denial of the claim. 38 C.F.R. § 3.655 (1999); Connolly v. Derwinski, 1 Vet. App. 566 (1991). 4. Thereafter, the RO should review the claims file to ensure that all of the above requested development has been completed in full. In particular, the RO should ensure that the requested examination and required opinions are in compliance with this remand and if they are not, the RO should implement corrective procedures. 5. After the completion of any development deemed appropriate in addition to that requested above, the RO should readjudicate the issue of whether the veteran is entitled to separate ratings for both arthritis and instability of the right knee. 6. Thereafter, the RO should again review the record. If the benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for final 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. 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 (previously known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "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, Veterans' Benefits Administration (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. Richard B. Frank 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).