Citation Nr: 0003117 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 97-27 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased evaluation for a right knee anterior cruciate ligament insufficiency, to include consideration of a separate evaluation for arthritis, currently rated at 30 percent disabling. 2. Entitlement to an increased evaluation for residuals of a left knee medial meniscectomy, to include consideration of a separate evaluation for arthritis, currently rated at 30 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. (The issue of whether achievement of a vocational goal is reasonably feasible for purposes of entitlement to vocational rehabilitation and training under Chapter 31, Title 38, United States Code is the subject of a separate decision.) REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The veteran served on active duty from June 1983 to March 1987. This matter is currently before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The veteran has raised the issues of entitlement to increased evaluations for a right wrist fracture, a right femur fracture and a right pelvis fracture, as well as whether new and material evidence has been submitted to reopen a claim for service connection for an organic brain disorder. These issues, however, are not currently developed or certified for appellate review. Accordingly, they are referred to the RO for appropriate consideration. REMAND As a preliminary matter, the Board finds that the veteran's claims for an increased evaluation for a right knee disorder and total disability evaluation based on individual unemployability are plausible and thus well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (1991); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service- connected disability generally is a well-grounded claim). After reviewing the claims files the Board finds that additional development is in order with respect to the veteran's claims currently on appeal. The record shows that his right knee disorder is currently evaluated as being 30 percent disabled under the diagnostic criteria for knee impairment. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). While 30 percent is the maximum allowable rating under this Code, greater evaluations are possible under the criteria for knee ankylosis and loss of range of motion. Diagnostic Codes 5256 and 5261. However, before these other diagnostic criteria may be considered, additional clinical data are needed in order to properly evaluate the veteran's right knee disorder as his last VA examination was given in August 1996. The Board also observes that, while the veteran is claiming entitlement to a total rating based on individual unemployability, it has been many years since he was afforded a VA examination of his residuals of a left knee medial meniscectomy, right wrist fracture, right femur fracture and right pelvis fracture. Based on the foregoing, the veteran should also be afforded a VA orthopedic examination in order to ascertain the severity of each of his service-connected disorders and to determine whether these service-connected disorders, without consideration of his non-service-connected disorders, make him unemployable. In accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995), the examiner should consider, with respect to each of the veteran's service-connected joint disorders, weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors resulted in any limitation of motion. The Board also observes that the file includes X-ray evidence of bilateral degenerative changes of both knees. Separate compensable evaluations may be in order for the bilateral knee arthritis. In this regard, the Board notes that the VA General Counsel has issued a precedential opinion (VAOPGCPREC 23-97 (July 1, 1997)) holding that a claimant who has arthritis and instability of the knee may be rated separately under diagnostic codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. Where adjudicatory provisions governing a claim change while the claim is pending, the version most favorable to the claimant applies, absent intent to the contrary. See Karnas v Derwinski, 1 Vet. App. 308, 312-313 (1991). Further, the veteran has presented a claim of entitlement to an increased evaluation for postoperative residuals of a left knee meniscectomy. This claim was denied in October 1994 and the veteran filed a notice of disagreement. To date, however, a statement of the case has yet to be issued to the veteran. Accordingly, in accordance with the decision in Manlicon v. West, 12 Vet. App. 238 (1999), this issue is remanded to the RO for appropriate action. Accordingly, further development is in order. Therefore, this case is REMANDED for the following action: 1. The RO should contact the veteran and request that he identify any health care provider who has provided treatment for his service-connected disorder since August 1996. If VA was the provider of choice, the specific medical center or outpatient clinic utilized must be identified. Following receipt of the veteran's response appropriate action should be undertaken. 2. The veteran should be scheduled for a VA orthopedic examination to determine the extent and severity of his service- connected disorders. All necessary evaluations, tests and studies, including X-rays and range of motion studies in degrees, deemed appropriate should be performed. The extent of any knee instability or subluxation should be noted. In accordance with DeLuca, the examination report must discuss, with respect to each service-connected joint disorder, the presence or absence of weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. If the veteran describes flare- ups of pain, the examiner must offer an opinion as to whether there would be any additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If the examiner is unable to offer an opinion as to the nature and extent of any additional disability during flare-ups that fact must be so stated. All opinions, and the supporting rationales, must be in writing. Since it is important that each disability be viewed in relation to its history, the veteran's claims folder, and a copy of this REMAND, must be made available to and reviewed by the examiner prior to conducting the requested examination. The examination report should be typed. 3. The appellant should be given adequate notice of this examination, to include advising him of the consequences of failure to report. If he fails to report for this examination, this fact should be noted in the claims folder and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims folder. 4. Following completion of the foregoing, the RO must review the claims file to ensure that all of the foregoing development has been completed in full, to include a review of the examination report and any requested medical opinion. If the requested development is not in complete compliance with the instructions provided above, appropriate action must be taken. 5. In respect to the veteran's right and left knee disorders, the RO should consider whether separate compensable evaluations might be warranted for arthritis. See (VAOPGCPREC 23-97 (July 1, 1997)) (holding that a claimant who has arthritis and instability of the knee may be rated separately under diagnostic codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology). 6. With regard to the veteran's left knee disorder, the RO should, in accordance with applicable procedures, consider any evidence obtained since the Notice of Disagreement, and as appropriate issue a Statement of the Case on the issue of entitlement to an increased evaluation for post operative residuals of a left knee meniscectomy. The Board takes this opportunity to note that it does not have appellate jurisdiction over this claim, and that it should be referred by the RO to the Board for appellate consideration if and only if the veteran files a timely substantive appeal. After consideration of all of the veteran's outstanding claims, the RO should readjudicate the issue of a total disability rating based on individual unemployability in light of all of the evidence of record. If any currently appealed claim remains denied, he and his representative should be furnished with a supplemental statement of the case and given an opportunity to respond. The purpose of this REMAND is to protect the appellant's right to due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is 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). WARREN W. RICE, JR. 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).