Citation Nr: 0811822 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-28 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for scar, right knee. 2. Entitlement to an increased rating for residuals of post- traumatic arthritis of the right knee with history of right medial meniscectomy, currently evaluated as 30 percent disabling. 3. Entitlement to an increased rating for degenerative disc disease of the cervical spine, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The veteran had active military service from August 1968 to February 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal of October 2003 and January 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied claims for increased ratings for the veteran's service-connected degenerative disc disease of the cervical spine and arthritis of the right knee. In the October 2003 decision, the RO also granted the veteran a temporary total evaluation due to knee surgery he had undergone in June 2003. In that decision, the RO also assigned a combined rating of 20 percent for the veteran's arthritis of the right knee, specifically awarding a 10 percent rating for post-traumatic medial compartment arthritis and a separate 10 percent rating for residuals of right medial meniscectomy. In the January 2004 decision, the RO granted the veteran service connection for a scar on his right knee and awarded the veteran a temporary total evaluation due to January 2007 knee replacement surgery. The RO also combined the veteran's right knee disabilities into one rating, awarding a rating of 30 percent for residuals of post-traumatic arthritis of the right knee with history of right medial meniscectomy. In February 2008, the veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. At the hearing, the veteran submitted additional evidence directly to the Board and waived his right to have the RO consider the evidence in the first instance. 38 C.F.R. §§ 20.800, 20.1304(a) (2007). The Board thus accepts this evidence into the record on appeal. As the appeal with respect to the veteran's claim for a higher rating for his service-connected scar of the right knee emanates from the veteran's disagreement with the initial rating assigned following the grant of service connection, the Board has characterized the claim as one for an initial rating, in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, at the February 2008 hearing, the veteran contended that his service-connected degenerative disc disease of the lumbar spine has "increased in severity." Although it was not explicitly stated as such, the Board infers from that statement a claim for a rating in excess of 20 percent for the veteran's degenerative disc disease of the lumbar spine. As this claim has not been adjudicated by the RO, it is not before the Board; hence, it is referred to the RO for appropriate action. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the veteran's claim for an initial rating in excess of 10 percent for scar of the right knee, and his claims for increased ratings for residuals of post-traumatic arthritis of the right knee with history of right medial meniscectomy, currently evaluated as 30 percent disabling, and degenerative disc disease of the cervical spine, currently evaluated as 20 percent disabling. The Board notes at the outset that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the medical evidence reflects that the veteran was provided a VA medical examination in October 2003. At that examination, the VA examiner noted that the veteran had a surgical scar that was "immature" and slightly tender to palpation. The scar was observed at that time to be 8.5 centimeters in length and 2 millimeters in width, with a central circular area of 1 centimeter by 1 centimeter. VAMC treatment records from March 2004 and April 2006 indicate that the scar was "well healed." The Board notes that the veteran has undergone a second right knee surgery since the 2003 VA medical examination; documentation of the surgery notes that the incision for the surgery was made through the veteran's prior surgical scar and measured 7 inches in length. There is no indication, however, of the width of the new surgical scar. Treatment notes from a June 2007 follow- up visit reflect that the scar was "well-healed" but do not address whether the scar was still tender or painful to examination or if it caused any limitation of function. At the February 2008 Board hearing, the veteran reported that the scar was painful "at times" and "doesn't stretch right." He also reported that the scar was "much longer" after the January 2007 surgery and had caused problems with bending, although "that part of it is much better now." It is unclear from the veteran's statements, however, whether the problems bending the knee are due to the scar itself or from the underlying right knee surgery. The Board notes that where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995). In this case, in light of the veteran's statements made at his hearing and the fact that he has not received a VA examination of his scar since his January 2007 surgery, the Board will remand the veteran's claim so that the veteran may be afforded a VA examination to determine the current severity of his service- connected right knee scar. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2007). Turning to an analysis of the veteran's claims for increased ratings for his service-connected post-traumatic arthritis of the right knee with history of right medial meniscectomy and degenerative disc disease of the cervical spine, the Board notes that when evaluating musculoskeletal disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated. See 38 C.F.R. §§ 4.40, 4.45 (2007); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Johnson v. Brown, 9 Vet. App. 7 (1996). In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation & Pension (C&P) Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's or spine's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. Additionally, under VAOPGCPREC 9-2004 (September 17, 2004), separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability based on limitation of motion of the same knee joint. Additionally, where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Allday, 7 Vet. App. at 526; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination). Regarding the veteran's service-connected post-traumatic compartment arthritis of the right knee with history of right medial meniscectomy, the Board notes primarily that he has been afforded no new VA examination following the January 2007 total right knee arthroplasty. There is thus no meaningful way for the Board to evaluate the current condition of the veteran's right knee at any point following the surgery. The Board looks in particular to statements made by the veteran at the February 2008 hearing, in which he stated that he is "very, very limited in my walking" following the surgery and is only able to walk half a block on bad days. He asserted at that time that he could not flex his leg properly and sometimes has his knee "collapse" on itself, folding underneath him. The veteran also contended that he walked with a limp. He also stated that his kneecap was rotating more successfully than before the January 2007 surgery but claimed that he had difficulty ascending and descending stairs due to the lack of flexion in the right knee. The Board also notes that the veteran was provided a VA medical examination in October 2003, at which the veteran reported continued worsening of his right knee pain following his June 2003 surgery, which was exacerbated by walking. No redness or locking was noted, but the veteran reported that he was unable to fully extend his leg. Physical examination revealed instability, stiffness, swelling, and warmth of the knee. The examiner was unable to manipulate the patella, which was found to have very limited mobility. The veteran's range of motion was extension to 20 degrees, during which the veteran assisted the motion with his right arm, and flexion to 112 degrees. The examination did not include repetitive motion testing of the range of motion of the veteran's knee. The examiner found pain to the medial aspect of the knee with both varus and valgus stress as well as atrophy of the right quadriceps muscles. The veteran was found to have a significant limp and walked with a cane. The examiner diagnosed right knee pain and significantly limited range of motion, status-post surgery to the right knee with a history of degenerative joint disease of the right knee. In this case, although it appears that the VA examiner conducted a proper evaluation to determine the veteran's functional loss and limitation of motion due to pain, the Board notes that the October 2003 examination report necessarily reflects no consideration of the veteran's symptomatology following his January 2007 total knee arthroplasty. The Court has stated that, when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this regard, the Court has held that the Board is prohibited from making conclusions based on its own medical judgment. Id. As no medical findings have been made following the veteran's January 2007 surgery, the Board is thus not qualified to substitute its judgment as to the current severity of the veteran's symptoms for that of a medical professional. The Board also acknowledges the veteran's statements at the February 2008 hearing, in which he reported difficulty with walking and flexion of the right knee. The Board notes that the veteran is qualified to report symptoms such as pain, difficulty walking, or difficulty flexing a joint. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). He is not, however, qualified, as a lay person, to offer a medical evaluation of the severity of his symptoms. In light of the above findings, the Board concludes that another VA examination is needed to provide current findings with respect to the veteran's service-connected right knee disability. Under these circumstances, the veteran should be scheduled to undergo orthopedic examination of the right knee. See 38 U.S.C.A. § 5103A. Similarly, with respect to the veteran's claim for an increased rating for his service-connected degenerative disc disease of the cervical spine, relevant medical evidence from the October 2003 VA examination reflects the examiner's finding that the veteran's neck pain radiated into his right arm and ear and caused stiffness of the neck. The veteran reported taking over-the-counter pain medications and anti- inflammatories to treat the pain. The veteran reported experiencing flare-ups lasting from several hours to several days if he turned his head the wrong way. The veteran also reported headaches, low-grade fever, and occasional blurred vision. Physical examination found the veteran's normal posture was to have his neck turned to the right with overdevelopment of the left neck muscle and atrophy of the right muscle. Range of motion was forward flexion to 30 degrees, extension to 40 degrees, bending to the right to 15 degrees, bending to the left to 25 degrees, and rotation to 15 degrees bilaterally. Repetitive motion testing was not performed. Radiological evaluation showed moderate degenerative disease of the cervical spine. The veteran also received a private radiological examination in October 2006, which revealed disc bulging and spondylosis of the cervical spine as well as extensive signal abnormality, which the examiner attributed "most likely" to degenerative disc disease. The Board notes, however, that the veteran has undergone no VA medical examination since October 2003. Further, the October 2003 examination did not include repetitive motion testing of the range of motion of the veteran's neck, pursuant to DeLuca, supra. The Board also notes that the veteran stated at the February 2008 hearing that he is unable to turn his head to perform activities such as backing out of parking spots, especially if his right arm is raised. At that time, the veteran reported that the pain in his neck is "constant" and has caused him to stop engaging in physical activity such as swimming or bowling, or practicing karate. He also reported sometimes throwing his neck out by sneezing. The Board thus finds that in light of the above findings, another VA examination is needed to provide current findings with respect to the veteran's service-connected degenerative disc disease of the cervical spine. Specifically, the VA medical examiner must address the DeLuca requirements, including loss of range of motion in the veteran's cervical spine due to repetitive motion. Under these circumstances, the veteran should be scheduled to undergo orthopedic examination of the cervical spine. See 38 U.S.C.A. § 5103A. The veteran is hereby notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claims. See 38 C.F.R. § 3.655(b) (2007). The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve VA of the responsibility to ensure full compliance with the Act and its implementing regulations. Hence, in addition to the actions requested above, the agency of original jurisdiction (AOJ) should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. In view of the foregoing, these matters are REMANDED for the following action: 1. The veteran and his representative should be sent a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable any additional pertinent evidence not currently of record relating to the veteran's right knee scar, arthritis of the right knee, and degenerative disc disease of the cervical spine to be obtained. The letter should also invite the veteran to submit any pertinent evidence in his possession and explain the type of evidence that is his ultimate responsibility to submit. 2. After securing any additional records, the veteran should be scheduled for dermatologic and orthopedic evaluation at an appropriate VA medical facility. The entire claims file must be made available to and reviewed by the physician(s) designated to examine the veteran. All appropriate tests and studies (to include X-rays and range of motion studies, reported in degrees) should be accomplished, and all clinical findings should be reported in detail. Dermatologic Examination-The examiner should evaluate the surgical scar on the veteran's right knee. Specifically, the examiner should identify any limitation of function caused by any service- connected scar. Additionally, the examiner must identify whether any scars are superficial and unstable (defined as a scar where there is frequent loss of covering of skin over the scar) or superficial, tender and painful on objective demonstration. A superficial scar is one not associated with underlying soft tissue damage. Likewise, the examiner must measure the scar and identify the total area of the scarring in square inches or square centimeters. The examiner should set forth all examination findings, along with the complete rationale for the opinions expressed. Orthopedic Examination-The examiner should report range of motion of the cervical spine in all directions (in degrees) and range of flexion and extension in the right knee (in degrees). Clinical findings should also include whether, during the examination, there is objective evidence of pain on motion (if pain on motion is present, the examiner must indicate at which point pain begins), weakness, excess fatigability, and/or incoordination associated with the cervical spine or the right knee; and whether, and to what extent, the veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups or with repeated use of the right knee or the cervical spine. The examiner should express such functional losses in terms of additional degrees of limited motion (beyond that shown clinically). With respect to the right knee arthroplasty, the examiner should specifically note whether the veteran experiences chronic severe painful motion or weakness. The examiner should set forth all examination findings, along with the complete rationale for the opinions expressed. Note: To properly evaluate any functional loss due to pain, C&P examiners, as per C&P Service policy, should at the very least undertake repetitive testing (to include at least three repetitions) of the cervical spine's range of motion and the right knee's range of motion, if feasible. See VA Fast Letter 06-25 (November 29, 2006). 3. The adjudicator should ensure that the examination report complies with this remand and the questions presented in the examination request. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate, the claims for higher ratings for right knee scar, right knee arthroplasty, and degenerative disc disease of the cervical spine should be readjudicated in light of all pertinent evidence and legal authority. Specific consideration should be given to whether 38 C.F.R. § 4.71a, Diagnostic Code 5055 applies, which allows for a total rating for one year following implantation of a prosthesis. If any benefit sought is not granted, the veteran and his representative should be furnished with an SSOC and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2007).