Citation Nr: 0003867 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 97 - 12 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES Entitlement to a rating in excess of 20 percent under Diagnostic Codes 5010-5261 for the veteran's limitation of extension of the left knee due to arthritis. Entitlement to a total disability rating based on unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: John S. Berry, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from August 1977 to June 1981. REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of September 1996 and January 1999 from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The September 1966 decision denied a total disability rating based on unemployability due to service-connected disabilities, while the appeal of the January 1999 decision, which granted a separate disability rating of 20 percent under DC 5010-5261 for the veteran's limitation of extension of the left knee due to arthritis, seeks a higher evaluation for that disability. The record shows that following issuance of the January 1999 rating decision, the veteran's attorney filed a Notice of Disagreement, in which he cited the granting of a 20 percent evaluation for arthritis of the knee and a 10 percent evaluation for a left peroneal nerve injury, and requested a Statement of the Case and VA [Form] 9. The veteran had previously perfected his appeal for a compensable rating for a left peroneal nerve injury. The record shows that the Board's July 1999 decision and remand cited the timely Notice of Disagreement filed as to the separate disability rating of 20 percent assigned under DC 5010-5261 for the veteran's limitation of extension of the left knee due to arthritis, and instructed the RO to issue a Supplemental Statement of the Case (SSOC) addressing that issue. The Board directed that in that SSOC, "[t]he appellant [was to be] specifically advised of his right to submit additional evidence or argument in support of that or any other pending claim, and to request a personal hearing." See Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129 (1992). Title 38 C.F.R. § 19.38 (1999) provides that when a case is remanded by the Board, the agency of original jurisdiction will complete the additional development of the evidence or procedural development required. Adherence to the requirements of a Board remand, in accordance with the cited regulation, is not permissive; it is mandatory. The record shows that a SSOC addressing the issue of a rating in excess of 20 percent under Diagnostic Codes 5010-5261 for the veteran's limitation of extension of the left knee due to arthritis was furnished the veteran and his attorney on August 1, 1999. However, the Court-mandated language specified in the Board's remand decision was not included in that SSOC, or in any attachments to that document. In additional, that August 1, 1999, SSOC informed the veteran and his attorney, in pertinent part: NOTE: If you wish to continue your appeal as to the issue of limitation of motion of the left knee due to arthritis, the enclosed VA Form 9 must be completed and returned. [Page 14, paragraph 8] However, the cover letter attached to that SSOC made no reference to any additional issue or issues being addressed in that document, did not request the completion and return of VA Form 9, and did not reflect the enclosure of VA Form 9, or any document other than the SSOC. Instead, the cover letter informed the veteran that a response at that time was optional. In its July 1999 Remand order, the Board specifically cited the holding of the Court that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. The Court further held that a remand by the Court or the Board imposes upon the Secretary of Veterans' Affairs a concomitant duty to ensure compliance with the terms of the remand, either personally or as [] "the head of the Department." 38 U.S.C.A. § 303 (West 1991). Further, the Court stated that where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board further informed the RO that the Board would ensure compliance with the mandate of the Court by whatever means were required, and that all cases returned to the Board which did not comply with the instructions of the Board remand would be returned to the RO for further appropriate action as directed. The RO has failed to give the veteran and his attorney the requisite notice specified in Kutscherouski, 12 Vet. App. 369 (1999), in Quarles, 3 Vet. App. 129 (1992), and in the Board's Remand decision of July 1999. In addition, the SSOC issued in August 1999 advised the veteran that a response to the Supplemental Statement of the Case was optional, which is in conflict with and contrary to the notation in the text of the SSOC, and creates a substantial likelihood of misleading the veteran as to the nature of any actions required of him. The Board further notes that the veteran's private attorney is under no obligation to notify the RO of procedural deficiencies in the preparation of appellate documents. The Board notes that the issue of a total disability rating based on unemployability due to service-connected disabilities cannot be resolved while there are pending and unresolved appeals on issues of service connection and increased ratings. If the required VA orthopedic and neurological examinations of the veteran following expiration of the schedular 100 percent postoperative rating for his left knee arthroplasty have not been completed, to include an opinion from both orthopedic and neurological examiners as to the impact of the veteran's left knee disabilities upon his employability, such examinations should be scheduled without further delay. The RO is hereby advised that if those examination reports do not include a statement of medical opinion from both examiners as to the impact of the veteran's left knee disabilities upon his employability, such examinations are inadequate for rating purposes, and additional examinations are required. If such examinations do not specifically address matters of weakened movement, excess fatigability, incoordination, and loss of function due to pain on use or during flare-ups, as provided by 38 C.F.R. Part 4, §§ 4.40 and 4.45 (1999); and as required by DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995), those examination reports are inadequate for rating purposes and additional examinations are mandatory. The case is Remanded to the RO for the following actions: 1. The RO should ask the veteran to identify specific names, addresses, and approximate dates of treatment for all health care providers from whom he has received treatment for his service- connected left knee disabilities since his left knee arthroplasty at Lincoln Surgery center in September 1998. With any necessary authorization from the veteran, the RO should attempt to obtain copies of all pertinent records identified by the veteran that have not been previously secured. In any event, the RO should obtain copies of all clinical records pertaining to treatment of the veteran at the VAMC, Lincoln, Nebraska, since September 1998. 2. If VA orthopedic and neurological examinations of the veteran to ascertain the nature and degree of residual disability following termination of the schedular 100 percent postoperative rating for his left knee arthroplasty have not been completed since the terminatiion of his schedualr 100 percent rating in November 1999, additional VA orthopedic and neurological examinations of the veteran must be conducted, to include an opinion from each examiner as to the impact of the veteran's left knee disabilities upon his employability. The orthopedic and neurological examiners are to review the veteran's claims folders prior to their examinations, and to determine the current nature and extent of all manifestations of left knee disability found present. The RO is advised that if either of those examination reports does not include a statement of medical opinion from that examiner as to the impact of the veteran's left knee disabilities upon his employability, such examination report is inadequate for rating purposes, and additional examination, or amendment of the report, is required. If such examinations do not specifically address matters of weakened movement, excess fatigability, incoordination, and loss of function due to pain on use or during flare-ups, as provided by 38 C.F.R. Part 4, §§ 4.40 and 4.45 (1999); and as required by DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995), those examination reports are inadequate and additional examinations are mandatory. 3. Following completion of the foregoing, the RO must review the claims folders and ensure that all of the requested development actions have been conducted and completed in full. If any development is incomplete, or if any examination reports are incomplete, inadequate, or do not include the requested information or opinions, appropriate corrective action should be implemented prior to returning the case to the Board. 4. Thereafter, the RO should undertake any other indicated development and readjudicate the issues of entitlement to a rating in excess of 20 percent under Diagnostic Codes 5010-5261 for the veteran's limitation of extension of the left knee due to arthritis, and entitlement to a total disability rating based on unemployability due to service- connected disabilities, to include on an extraschedular basis. 5. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office, or to request a personal hearing. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129 (1992). If the benefits sought on appeal are not granted to the veteran's satisfaction or if a timely Notice of Disagreement is received with respect to any other matter, the RO should issue a Supplemental Statement of the Case, including all applicable law and regulations, and the appellant and his attorney should be provided an opportunity to respond. The appellant should be advised of the requirements to initiate and perfect an appeal on any issue addressed in the Supplemental Statement of the Case which is not currently on appeal. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of these claims. These claims 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. F. JUDGE FLOWERS 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).