Citation Nr: 0002908 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-19 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased evaluation for the surgical residuals of a left knee injury with degenerative joint disease (DJD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. M. Barnard, Counsel REMAND The veteran served on active duty from November 1966 to August 1969. This appeal arose from a June 1996 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA), Regional Office (RO), which had denied entitlement to an evaluation in excess of 20 percent for the service-connected left knee disability. In May 1997, the RO issued a rating action which increased the disability evaluation to 30 percent, effective January 8, 1996. This evaluation was confirmed and continued by a rating action issued in September 1998. A supplemental statement of the case issued in May 1999 notified the veteran of the continued denial of an evaluation in excess of 30 percent for the service- connected left knee disorder. VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). This includes the duty to obtain a VA examination which provides an adequate basis upon which to determine entitlement to the benefit sought, as well as the duty to obtain all relevant treatment records. Littke v. Derwinski, 1 Vet. App. 90 (1991). Examinations by specialists are recommended in those cases which present a complicated disability picture. Hyder v. Derwinski, 1 Vet. App. 221 (1991). In the instant case, the veteran was last examined by VA in August 1998. Since that time, he has alleged that his knee condition has worsened. However, no additional examination was conducted. Moreover, according to DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter "the Court"), held that in evaluating a service-connected disability involving a joint rated on limitation of motion, 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 (1997), and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 (1997) does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over a period a time. The Court also held that the examiner should be asked to determine whether the joint exhibits weakened movement, excess fatigability or incoordination. If feasible, these determinations were to be expressed in terms of additional range of motion loss due to any pain, weakened movement, excess fatigability or incoordination. Finally, it appears that the veteran continues to seek VA outpatient treatment for his knee disorder. The RO should ascertain if there are additional records available for review prior to a final determination of his claim. Under the circumstances of this case, it is found that additional assistance would be helpful, and this case will be REMANDED to the RO for the following: 1. The RO should contact the Alexandria, Louisiana, VA Medical Center outpatient clinic and request that they provide copies of all records pertaining to treatment of the veteran's left knee disorder developed between January 1999 and the present. 2. Once the above-requested development has been completed and any pertinent records have been associated with the claims folder, the RO should afford the veteran a complete VA orthopedic examination by a qualified physician in order to fully evaluate the current nature and degree of severity of the service-connected left knee disorder. The claims folder must be made available to the examiner to review in conjunction with the examination, and the examiner is asked to indicate in the examination report that she/he has reviewed the claims folder. All indicated special tests are to be performed and must include range of motion testing. The examiner should note the range of motion of the left knee. The examiner must obtain active and passive ranges of motion (in degrees), state if there is any limitation of function and describe it, and state the normal range of motion. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare- ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the knee joint is used repeatedly. Special attention should be given to the presence or absence of pain, stating at what point in the range of motion pain occurs and at what point pain prohibits further motion. The factors upon which the opinions are based must be set forth. The examiner should provide a complete rationale for all conclusions reached and explain any loss of mobility reported in the above examination. 3. The RO should then re-adjudicate the veteran's claim for an increased evaluation for the service-connected left knee disorder. If the decision remains adverse to the appellant, he and his representative should be provided an appropriate supplemental statement of the case, and an opportunity to respond. 4. 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 tests reports, special studies or opinions requested, appropriate corrective action is to be implemented. 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. C. P. RUSSELL 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).