Citation Nr: 0000206 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-12 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. The propriety of the initial 10 percent rating for post- operative residuals of a left lateral meniscus tear. 2. The propriety of the initial 10 percent rating for post- operative residuals of a right knee condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. R. Steyn, Associate Counsel INTRODUCTION The veteran had active military service from June 1992 to June 1996. This appeal arises before the Board of Veterans' Appeals (Board) from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware, which granted the veteran entitlement to service connection for post-operative residuals of a left lateral meniscus tear, and for post-operative residuals of a right knee condition, and assigned separate initial 10 percent ratings for each disability. The veteran was scheduled for a Travel Board hearing in July 1999 for which he did not report. Notification of such hearing was mailed to the veteran at his current address in June 1999, but the envelope with such notification was marked return to sender. REMAND The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. The United States Court of Appeals for Veterans Claims (Court) has held that the Board may consider only independent medical evidence to support Board findings. If the medical evidence of record is insufficient, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Also, as the Court noted in Massey v. Brown, 7 Vet.App. 204 (1994), rating decisions must be based on medical findings that relate to the applicable criteria. When the veteran underwent his November 1997 VA examination, the examiner commented that the veteran had 1+ laxity involving both patellas. The veteran's knee disabilities are rated under Diagnostic Code 5257, in which the rating criteria discuss "recurrent subluxation and lateral instability," in terms of whether such findings are slight, moderate, or large. It is clear that there is some laxity in the veteran's patellas, but it is not clear for rating purposes how severe of a finding 1+ laxity is. Accordingly, the veteran's claim must be remanded for another VA examination that discusses whether the veteran has subluxation or lateral instability, and if he does, whether it can be described as slight, moderate, or large. Also, there are ambiguous references about whether the veteran has arthritis, and it is not clear whether there are other additional aspects of the veteran's disability which have not been considered. In a recent opinion issued by the VA's Office of the General Counsel, it was determined that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (July 1, 1997). In a subsequent opinion issued by the General Counsel, it was determined that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion the knee disability need not be compensable but must at least meet the criteria for a zero-percent rating. It was also determined that a separate rating for arthritis could be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. See VAOPGCPREC 09-98 (August 14, 1998). At the veteran's November 1997 VA examination, the examiner commented that there were x-rays of both knees taken in October 1997, which stated a normal examination. The examiner went on to state that upon review (presumably of the x-ray report), there was a narrowing of the medial joint fissure. However, the x-ray report to which he refers has not been made part of the claims file. Accordingly, the RO should obtain copies of the x-ray report(s) of the veteran's knees from October 1997, and when the veteran undergoes his VA examination, the examiner should comment on whether the veteran has arthritis of his knees and should specifically comment about the narrowing of the medial joint fissure. Therefore, pursuant to the General Counsel opinions at VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998), when the RO rates the veteran's knee disabilities, the RO must determine whether the veteran is entitled to separate ratings for arthritis of his knees. For the reasons stated above, this case is REMANDED to the RO for the following actions: 1. The RO and any physician to whom this case is assigned for an examination and/or a statement of medical opinion must read the entire remand, to include the explanatory paragraphs above the numbered instructions. 2. The RO should obtain all relevant current medical records that have not already been associated with the claims folder. The RO should specifically obtain the October 1997 VA x-ray report(s) of the veteran's knees. 3. The appellant should be afforded a VA orthopedic examination to determine the nature and severity of his service- connected left and right knee disabilities. The examiner should provide diagnoses of all disorders of the veteran's left and right knees. Such tests as the examining physician deems appropriate should be performed. These tests should include a complete test of the range of motion of the veteran's left and right knees. The examination report should include responses to the following medical questions: a. What is the range of motion of the veteran's left knee in terms of flexion and extension? b. What is the range of motion of the veteran's right knee in terms of flexion and extension? c. Does the veteran have subluxation or lateral instability of the left knee, and if he does, can such subluxation or lateral instability be described as slight, moderate, or severe? d. Does the veteran have subluxation or lateral instability of the right knee, and if he does, can such subluxation or lateral instability be described as slight, moderate, or severe? e. Does the veteran have arthritis of the left knee (in answering this question, the examiner should comment on the finding of the November 1997 VA examiner that the veteran had narrowing of the medial joint fissure)? f. Does the veteran have arthritis of the right knee (in answering this question, the examiner should comment on the finding of the November 1997 VA examiner that the veteran had narrowing of the medial joint fissure)? g. Does the veteran's left knee exhibit weakened movement, excess fatigability, incoordination, or pain on use attributable to the service connected disability (if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms)? h. Does the veteran's right knee exhibit weakened movement, excess fatigability, incoordination, or pain on use attributable to the service connected disability (if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms)? i. Does pain significantly limit functional ability during flare-ups or when the left knee is 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)? j. Does pain significantly limit functional ability during flare-ups or when the right knee is 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)? If the examiner determines that, it is not feasible to respond to any of the above items, the examiner should identify specifically the items to which it is not feasible to respond. 4. After the development requested above has been completed, the RO should review the veteran's claims folder and ensure that all the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action should be taken. 5. After the development requested above has been completed, the RO should readjudicate the appellant's claims challenging the propriety of the initial 10 percent rating for post-operative residuals of a left lateral meniscus tear, as well as the propriety of the initial 10 percent rating for post- operative residuals of a right knee condition. with particular consideration of the provisions of 38 C.F.R. §§ 4.40, 4.45, as set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). In so doing, the RO should consider whether the veteran is entitled to separate ratings for arthritis and should also consider the Office of the General Counsel opinions VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). In the event that the claims on appeal are not resolved to the satisfaction of the appellant, the veteran 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, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. 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). 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, 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. G. H. SHUFELT Member, Board of Veterans' Appeals