Citation Nr: 0005731 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 96-36 989A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for a chondromalacia of the left knee, post-operative status with bone grafting, currently rated as 20 percent disabling. 2. Entitlement to an increased rating from 10 percent for a right knee disability, post-operative status with bone grafting, for the period prior to February 19, 1997. 3. Entitlement to an increased rating from 20 percent for a right knee disability, post-operative status with bone grafting, for the period beginning October 1, 1997. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. R. Steyn, Associate Counsel INTRODUCTION The veteran had active military service from July 1980 to February 1987. This appeal arises before the Board of Veterans' Appeals (Board) from an April 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the veteran's claim seeking entitlement to an increased rating from 10 percent disabling for a right knee disability, post-operative status with bone grafting, and from an April 1997 rating decision which granted the veteran an increased rating to 10 percent disabling for chondromalacia of the left knee, post-operative status with bone grafting. In October 1997, the RO granted the veteran an increased rating for his right knee disability to 20 percent disabling and for his left knee disability to 20 percent disabling, with both increases taking effect October 1, 1997. The veteran continued his appeal. It is noted that the veteran had been granted a temporary total evaluation for both his left knee and right knee disabilities for the period from February 19, 1997 through September 30, 1997. With this in mind, the issues in appellate status are: entitlement to an increased rating for a chondromalacia of the left knee, post-operative status with bone grafting, from 20 percent disabling; entitlement to an increased rating from 10 percent for a right knee disability, post-operative status with bone grafting, for the period prior to February 19, 1997; and entitlement to an increased rating from 20 percent for a right knee disability, post- operative status with bone grafting, for the period beginning October 1, 1997. It is noted that in the veteran's September 1996 substantive appeal, he asserted that he had pain in his back while on active duty. Accordingly, the claim of entitlement to service connection for a back disability is referred to the RO for appropriate action. 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 where the record does not adequately reveal the current state of the veteran's service-connected disability, fulfillment of the duty to assist requires a thorough and contemporaneous medical examination. Goss v. Brown, 9 Vet.App. 109, 114 (1996). Regarding the veteran's left knee, a VA hospitalization record from October 1999 shows that the veteran was hospitalized for 3 days. It notes that the veteran was kicked in the left knee, sustaining a fracture to his left lateral tibial plateau, and that he underwent an operation to treat such fracture. In its October 1999 supplemental statement of the case, the RO discussed such record, and noted that the veteran was treated for an intercurrent injury to the left knee with no evidence of permanent aggravation of the chronic condition. Notwithstanding the RO's statement to the contrary, it is not clear if the veteran's service-connected left knee condition worsened as a result of his fracture to the left lateral tibial plateau. He has not had a VA examination after such injury. Accordingly, the veteran's claim must be remanded for another VA examination that discusses whether the veteran's service-connected left knee disability has increased in severity due to his being kicked in the left knee. Regarding the veteran's right knee, in its January 1999 remand, the Board asked "does the veteran have arthritis of the right knee and/or the left knee?" In answer to that question, the examiner from the veteran's July 1999 VA examination wrote that he could not determine whether the veteran had arthritis, but that he was going to order x-rays that would answer that question. The x-ray report from July 1999 provided an impression of status post patellar resection bilaterally with bone grafting and reconstruction with no significant interval change. It also noted that there was mild peaking of the tibial spines and no significant joint space narrowing. The Court has recently underscored the role of agencies of original jurisdiction in carrying out the instructions in Board Remands. As noted by the Court, the duties of the agencies of original jurisdiction in this regard are mandatory, and, furthermore, the Board of Veterans' Appeals is obligated to insure compliance with the instructions in Remands. Stegall v. West, 11 Vet. App. 268 (1998). The July 1999 VA examination and x-ray report did not provide an answer to the question that the Board posed regarding whether the veteran had arthritis or not. It might be apparent to a physician from the July 1999 x-ray report whether or not the veteran has arthritis of the knees or not, but it is not apparent to a non-physician. Accordingly, pursuant to Stegall, the veteran's claim for an increased rating of the right knee from 20 percent for the period beginning October 1, 1997, must be remanded in order to determine whether he has arthritis of the right knee or not. 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). As noted in the introduction, there are two separate claims in appellate status regarding the veteran's claim for an increased rating for a right knee disability: one is an increased rating from 10 percent for the period prior to February 19, 1997, and the other is an increased rating from 20 percent for the period beginning October 1, 1997. As has been discussed, the veteran's claim for an increased rating for a right knee disability from 20 percent for the period beginning October 1, 1997, needs to be remanded in order to determine whether the veteran has arthritis of the right knee or not. For the reasons described below, the veteran's claim for an increased rating from 10 percent for a right knee disability for the period prior to February 19, 1997, must also be remanded. This is because in September 1996, the veteran was diagnosed with degenerative joint disease of the knees, and in February 1997, the veteran was diagnosed with osteoarthritis of the right and left patellofemoral joints. Pursuant to VAOPGCPREC 09-98 (August 14, 1998), the veteran is only entitled to a separate rating for arthritis of the knee based on x-ray findings of arthritis of the knee and painful motion. The findings from September 1996 and February 1997 do not seem to be based on x-ray findings. Still, they legitimately raise the question of whether the veteran had arthritis of the right knee at that time, in which case the veteran would be entitled to a separate rating for arthritis. For that reason, the veteran's claim for an increased rating for a right knee disability for the period prior to February 19, 1997, must also be remanded for a VA examination. 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 a separate ratings for arthritis of the 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 all VA outpatient treatment records after October 1999. 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. 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 such question the examiner should comment on whether there are x-ray findings of arthritis of the left knee; the examiner should also comment on the finding from September 1996 showing degenerative joint disease of the knees and the finding from February 1997 showing osteoarthritis of the left patellofemoral joint)? f. Does the veteran have arthritis of the right knee (in answering such question the examiner should comment on whether there are x-ray findings of arthritis of the right knee; the examiner should also comment on the finding from September 1996 showing degenerative joint disease of the knees and the finding from February 1997 showing osteoarthritis of the right patellofemoral joint)? 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)? For all of the above questions regarding the veteran's left knee, the examiner should separate out to the degree possible all symptomatology stemming from the fracture of the veteran's left lateral tibial plateau and all symptomatology stemming from the veteran's service-connected chondromalacia of the left knee, post- operative status with bone grafting. 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 claim for an increased rating for chondromalacia of the let knee, post-operative status with bone grafting, as well as the claims for an increased rating for a right knee disability, post-operative status with bone grafting from 10 percent for the period prior to February 19, 1997, and from 20 percent for the period beginning October 1, 1997, 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 a separate rating 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 claim on appeal is 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 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) (1998).