Citation Nr: 0001484 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 99-12 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service-connected lumbosacral strain, on appeal from the initial evaluation. 2. Entitlement to a compensable evaluation for service- connected status post partial medial meniscectomy of the left knee, on appeal from the initial evaluation. 3. Entitlement to a compensable evaluation for service- connected status post right knee meniscectomy, on appeal from the initial evaluation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Herman, Associate Counsel INTRODUCTION The veteran had verified active military service from January 1986 to January 1997. He also appears to have had active military service from November 1976 to May 1981. This appeal arises from a November 1997 rating decision of the Winston- Salem, North Carolina, regional office (RO) which assigned a 10 percent disability evaluation for lumbosacral strain and noncompensable disability evaluations for status post partial medial meniscectomy of the left knee and status post right knee meniscectomy, after granting service connection for those disabilities. A videoconference hearing between Washington, D.C., and Winston-Salem, North Carolina, was held on August 5, 1999, before Barbara B. Copeland, who is a member of the Board of Veterans' Appeals (Board) rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 1999). During said conference, the veteran submitted additional medical records that had not been previously considered by the RO. However, in an attached statement, the veteran waived review of the additional evidence by the RO. Therefore, pursuant to 38 C.F.R. § 20.1304(c) (1999), the Board need not remand this case to the RO solely for review of that evidence. REMAND The U.S. Court of Appeals for Veterans Claims (Court) has held that, when a claimant is awarded service connection for a disability and subsequently appeals the RO's assignment of a rating for that disability, the claim continues to be well- grounded as long as the rating schedule provides for a higher rating and the claim remains open. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Inasmuch as the veteran in the current case has claimed that his service-connected disorders are more disabling than currently evaluated, he has stated well-grounded claims. Thus, VA is obligated to assist him in the development of these claims. 38 U.S.C.A. § 5107(a) (West 1991). At the time of his August 1999 videoconference hearing, the veteran testified that he suffered from chronic low back pain with spasm. He said excessive exertion and/or repeated use caused increased pain and functional limitation. He reported that he occasionally experienced radiation down his right leg. With regard to his knees, the veteran endorsed chronic pain, swelling, and instability. He stated that he frequently had to ice his knees at the end of the day. He indicated that he had received post-service treatment for his back and knee disabilities through the Fayetteville VA Medical Center (VAMC) and Womack Army Medical Center. The Board finds that the veteran's May 1997 VA general medical examination was inadequate for the purpose of evaluating the veteran's service-connected back and knee disabilities. The Court has stated that an examination must provide sufficient information to rate the disability in accordance with the applicable rating criteria. See Wisch v. Brown, 8 Vet. App. 139 (1995) (a medical examination must specifically address pertinent issues and the silence of an examiner cannot be relied on as evidence against a claim.) In the instant case, the Board observes that the May 1997 examination did not adequately evaluate the veteran's complaints of pain on movement and use as required by DeLuca v. Brown, 8 Vet. App. 202 (1995). Therein, the Court held that in evaluating a service-connected disability involving a joint, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 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 use during flare-ups. Accordingly, the veteran should be afforded another VA orthopedic examination. Further, as referenced above, the veteran complains that his service-connected lumbosacral disability is causing neurological problems. He states that he periodically experiences a numbness that radiates down and into his right lower extremity. These complaints do not appear to have been adequately evaluated. The Court has held that the Board, in rendering its final decision, must consider independent medical evidence in support of recorded findings, rather than provide its own medical judgment in the guise of a Board opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The veteran should be afforded a VA neurological examination to determine the etiology of his alleged neurological problems. The Board notes that the Court has held that a veteran can be rated separately for different manifestations of the same injury, where "none of the symptomatology for any one of [the] conditions is duplicative of or overlapping with the symptomatology of the other two conditions," and that such combined ratings do not constitute pyramiding prohibited by 38 C.F.R. 4.14. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Regarding the knee, the VA Office of General Counsel has found that instability contemplated under Diagnostic Code 5257 of VA's Schedule for Rating Disabilities does not overlap with limitation of motion caused by arthritis under Diagnostic Code 5002, and, therefore, separate evaluations may be assigned. VAOPGCPREC 23-97 (July 1997). As the veteran has complained of instability in both of his service- connected knees, the RO should give careful consideration to the General Counsel opinion in its re-adjudication of this matter. Finally, the VA has a duty to assist a claimant in the development of facts pertinent to his or her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes the procurement of medical records to which the veteran has made reference. Littke v. Derwinski 1 Vet. App. 90 (1990). As this matter is being returned for additional medical examinations, the RO should obtain the veteran's current medical records pertaining to the treatment of his service-connected low back, left knee, and right knee disabilities. Although further delay is regrettable, under the circumstances described above, additional development is considered necessary. Therefore, this case is Remanded to the RO for the following development: 1. The RO should obtain the names and addresses of all VA and non-VA medical care providers who have treated the veteran for his service-connected low back, left knee, and/or right knee disabilities since service discharge. All records not already included in the claims folder should be obtained, to include those from the Womack Army Medical Center, the Fayetteville VAMC, and any other identified VA facility. Once obtained, all records must be associated with the claims folder. 2. The RO should schedule the veteran for special VA orthopedic and neurological examinations to determine the severity of his service-connected low back and bilateral knee disabilities. a. General information for the examiners: The claims folder must be made available to the examiners for review prior to the examinations. A copy of this Remand decision should be provided to each physician. Such tests as the examiners deem necessary should be performed. b. Special instructions for the orthopedic examiner: The examiner should provide the answers/findings indicated below to each question or instruction posed. No instruction/question should be left unanswered. If the examiner finds that it is not feasible to answer a particular question or follow a particular instruction, he or she should so indicate and provide an explanation. I. The examination must include measurements of the ranges of motion of the left knee and right knee in degrees, with normal flexion being to 140 degrees and normal extension being to 0 degrees. II. The examiner should state whether the cartilage of the left and/or right knee is dislocated, with frequent episodes of "locking," pain, and effusion into the joint and whether there is arthritis of either knee and, if so, whether it is related to or a manifestation of service-connected disability. III. If lateral instability or subluxation of the left and/or right knee is present, it should be described as either mild, moderate, or severe. IV. With regard to the veteran's low back disability, the examiner should be asked to state the ranges of motion of the lumbar spine in degrees. Moreover, the examiner should state the normal ranges of motion of the lumbar spine in degrees. V. The examiner should be asked to determine whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected low back, left knee, and/or right knee disabilities; and, if feasible, these determinations must be expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. VI. The examiner should be asked to express an opinion on whether pain in the low back, left knee, and/or right knee could significantly limit functional ability during flare-ups or during periods of repeated use. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. c. Special instructions for the neurological examiner: Any neurological complaints or findings attributable to the veteran's service-connected disability of the low back should be identified. The examiner should state whether the veteran experiences intervertebral disc syndrome as a manifestation of or otherwise related to the service-connected lumbosacral strain. If so, the examiner should state whether the veteran experiences recurring attacks and the degree of intermittent relief he experiences between those attacks. The examiner should further state whether any intervertebral disc syndrome that may be present results in incapacitating episodes and the total duration of any of these episodes. The examiner should also be asked if there is evidence that the veteran has sciatic neuropathy with characteristic pain attributable to the service- connected back disability. If so, the examiner should state whether the sciatic neuropathy results in demonstrable muscle spasm, absent ankle jerk, or any other neurological finding. All factors upon which any medical opinion is based must be set forth for the record. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examinations do not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 4. When the above developments have been completed, the case should be reviewed by the RO. In evaluating the veteran's service-connected disabilities, the provisions of DeLuca and 38 C.F.R. §§ 4.40 and 4.45 must be discussed. Consideration should be given to the above referenced General Counsel Opinion in which it was determined that a claimant who has knee arthritis and instability may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. The RO should also discuss the recent case of Fenderson v. West, 12 Vet. App. 119 (1999). Therein, the Court held that, with regard to initial ratings following the grant of service connection, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. If the decision remains adverse to the veteran, he and his representative should be issued a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond. The SSOC should include citation to all relevant regulatory provisions. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional medical information. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. 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. BARBARA B. COPELAND 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).