Citation Nr: 0001833 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 95-17 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether a rating decision in March 1956, which denied entitlement to service connection for a left knee disability, involved clear and unmistakable error (CUE). 2. Entitlement to an effective date earlier than April 20, 1992, for a grant of service connection for traumatic arthritis of the left knee. 3. Entitlement to an increased evaluation for traumatic arthritis of the left knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Milton G. Kimpson, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from May 1955 to November 1955. This appeal to the Board of Veterans' Appeals (Board) arose from a rating decision in February 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. By a decision of April 7, 1997, the Board denied the veteran's claims. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board's April 7, 1997, decision and remanded the case to the Board for further development of the evidence and readjudication. [citation redacted] REMAND At a personal hearing in November 1995, the veteran testified that there had been an increase in the severity of his service-connected left knee disorder since a VA examination in 1993. Therefore, VA had an affirmative duty to arrange for another medical examination in order to ascertain the current degree of severity of the veteran's left knee disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). This case will be remanded to the RO so that the veteran may be permitted to undergo a comprehensive examination of his left knee, which should be performed in light of the Court's decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court noted that 38 C.F.R. § 4.40 specifically refers to disability due to the lack of normal coordination and endurance, provides for a rating to be based on functional loss due to pain, and stated that a part which becomes painful on use must be regarded as seriously disabled. The Court stated that it is essential that a rating examination adequately portray functional loss. DeLuca, 8 Vet. App. at 205-6. In addition, 38 C.F.R. § 4.45 provides that, in rating joint disabilities, inquiry will be directed to weakened movement, excess fatigability, incoordination, and pain on movement, in addition to limitation of motion. Where evidence establishes pain on use, 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including during flare-ups. DeLuca, 8 Vet. App. at 206. Therefore, at a new VA examination, the examiner should address whether the veteran experiences pain on motion and, if so, the extent to which such pain through such range of motion is equivalent to loss of motion. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca, 8 Vet. App. at 206 (loss of range of motion should be portrayed in terms of the additional range of motion loss due to pain on use or during flare-ups). In addition, consideration should be given to the issue of whether separate ratings for arthritis of the left knee and instability of the left knee, if found, are appropriate. See VAOPGCPREC 23-97 (1997), VAOPGCPREC 9-98 (1998). Under the circumstances, this case is REMANDED to the RO for the following: The RO should arrange for the veteran to undergo an examination by a specialist in orthopedics. It is imperative that the examiner review a copy of this REMAND and the veteran's medical records in his claims file. The examiner should determine the current nature and extent of the veteran's left knee disorder. All indicated diagnostic studies should be performed. In accordance with DeLuca, the orthopedic examination report should cover any 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 additional limitation of motion. If the veteran describes flare-ups of pain, the orthopedic examiner should offer an opinion as to whether there would be additional limits on functional ability during the 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 of any additional disability during a flare- up, that fact should be stated. The examination report should be typed. Following completion of these actions, the RO should review the evidence and determine whether the veteran's claim of entitlement to increased evaluation for traumatic arthritis of the left knee may now be granted. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this REMAND are to comply with the Court's order and to obtain clarifying medical information. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. Appellate review of the CUE and earlier effective date issues is deferred, pending completion of this REMAND. No action is required of the veteran until he receives further notice. 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). R. F. Williams Member, Board of Veterans' Appeals 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) (1999).