Citation Nr: 0005089 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-17 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating for left knee chondromalacia greater than 10 percent. 2. Entitlement to an initial rating for right knee chondromalacia greater than 10 percent. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hickey, Counsel INTRODUCTION The veteran had active service from February 1974 to April 1983. This appeal to the Board of Veterans' Appeals (Board) arises from the March 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which inter alia granted service connection for chondromalacia of the left and right knees, each evaluated as noncompensably disabling. By rating actions in August 1997 and October 1997, 10 percent evaluations were assigned for the left and right knees respectively. The case was previously before the Board in July 1999 when the issues currently on appeal were remanded for further evidentiary development in accordance with the decision of the U. S. Court of Appeals for Veterans Claims (Court) in Deluca v. Brown, 8 Vet.App. 202 (1995). REMAND On review of the claims folder following remand it is noted that the evidentiary record remains inadequate for a Deluca analysis with respect to evaluation of the veteran's service- connected knee disabilities. The report of the August 1999 VA examination does not comply with the Court's directives in DeLuca, that examinations upon which rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flareups." DeLuca, at 206 (emphasis added). When the veteran claims functional loss due to pain, "[t]he medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time." Id. The Court's decision in Deluca specifically requires that the medical examiner should be asked to determine whether each joint in question exhibited pain, weakened movement, excess fatigability or incoordination and that the determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to such pain, weakened movement, excess fatigability or incoordination. In DeLuca, the Court held that ratings based on limitation of motion do not subsume 38 C.F.R. § 4.40 (1994) or 38 C.F.R. § 4.45 (1994). It was also held that the provisions of 38 C.F.R. § 4.14 (1994) (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The August 1999 examination report reflects the VA examiner's opinion that the "service-connected disability of each knee does result in weakened movement and excess fatigability and incoordination due to the pain in his knees." It is further noted that the veteran's pain is manifested by his voluntary use of a cane to treat his pain. However, as noted in the Board's July 1999 remand the Court stated in DeLuca that specificity of findings with regard to functional loss due to pain is required. Although further delay is regrettable, an additional VA orthopedic examination is warranted to ensure a fully informed determination regarding the evaluation of the veteran's service-connected disabilities. It this regard it is further noted that the record does not reflect whether the August 1999 VA examiner reviewed the veteran's claims folder in conjunction with the examination as mandated by the Board's remand. VA's obligation to assist the veteran in the development of evidence pertinent to his claim includes the conduct of a thorough and contemporaneous examination, which takes into account the records of prior medical treatment. See Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Additionally, the Court recently held 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. It was held further 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. 38 U.S.C. § 303. Finally, it was held that where the remand orders of the Board or the Court are not complied with, the Board itself errs in failing to insure compliance. Stegall v. West, No. 97-78 (U.S. Vet App. June 26, 1998). On remand the RO's attention also is directed to recent precedent opinions by the General Counsel of VA, holding that a veteran who has arthritis and instability in his knee may receive separate ratings under Codes 5003 and 5257 (see VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). The General Counsel has further held that separate ratings are only warranted in those cases where the veteran has limitation of motion in his knee to at least meet the criteria for a zero-percent rating under Codes 5260 or 5261, or (consistent with DeLuca v. Brown, 8 Vet. App. at 204-7 and 38 C.F.R. §§ 4.45 and 4.59) where there is probative evidence showing the veteran experiences painful motion attributable to his osteoarthritis. See VAOPGCPREC 9-98 (Aug. 14, 1998). In view of the foregoing, the case is REMANDED for the actions listed below. As previously noted 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 may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. 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 contact the veteran and request that he submit the names and addresses of all health care providers, VA or private, who have evaluated or treated him for either knee disability since August 1999. After securing the necessary releases, the RO should request copies of any previously unobtained pertinent medical records for association with the claims folder. 3. Following completion of the above requested development, the veteran should be scheduled for a special VA orthopedic examination to assess the nature and extent of his service-connected left and right knee disabilities. The examiner must review the claims folder prior to evaluating the veteran and indicate in the examination report that such review has been accomplished. All indicated tests and studies should be performed, to include full range of motion studies, and all clinical findings clearly set forth in the examination report. Additionally the examiner should provide the following opinions based upon the medical evidence of record, with regard to each knee. a. The examiner should be asked to provide an opinion as to whether each knee exhibits weakened movement, excess fatigability, or incoordination attributable to the service connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. b. The examiner should also provide an opinion as to whether pain could significantly limit functional ability during flare-ups or on repeated use over a period of time. This determination should if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. All opinions expressed must be supported by reference to the medical evidence of record. 5. Prior to consideration of the veteran's claims the RO should review the claims folder to ensure that all requested development has been accomplished and take any corrective action required. 6. Following the completion all above requested actions the RO should review the veteran's claims for increased ratings for his left and right knee disabilities, on the basis of all evidence of record, and all applicable law and regulations, to include the Court's directives in Deluca. The precedential opinions of the General Counsel, should also be applied as warranted by the evidence. If any action taken remains adverse to the veteran he and his representative should be provided a supplemental statement of the case and an appropriate period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until otherwise notified. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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) (1999).