Citation Nr: 0813843 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 02-10 879A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for service-connected patellofemoral syndrome of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The veteran had active military service from December 1974 to December 1977 and from September 1979 to June 1992. More than two years of active service prior to December 1974 have been reported. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2002 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas, which denied an increased rating for the veteran's service-connected right knee disability, and continued the 10 percent rating. The veteran subsequently filed a timely appeal. By a June 2004 decision, the Board denied the veteran's claim, determining that an increased rating in excess of 10 percent for patellofemoral syndrome of the right knee was not warranted. The veteran timely appealed the Board's adverse decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2006 Memorandum Decision, the Court vacated the Board's June 2004 decision and remanded the case for readjudication, specifically directing the Board to consider any limitation of motion caused by pain of the right knee. By a May 2007 decision, this case was remanded by the Board. For the reasons explained below, it is again necessary to return this case to the RO for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. In the November 2006 Memorandum Decision, the Court instructed the Board to refer to the RO the issue of whether the veteran had initiated an informal claim for total disability based on individual unemployability (TDIU). In the May 2007 remand decision, the Board noted that the veteran had received a 100 percent evaluation for service- connected dysthymic disorder with schizophrenia and bipolar disorder, effective from July 26, 2004. Because the veteran was in receipt of a total evaluation for a service-connected disorder, he was ineligible for TDIU from the effective date of that total award. See Green v. West, 11 Vet. App. 472, 476 (1998) (holding that "[s]ince the veteran . . . is entitled to a 100 percent schedular rating for his service- connected [disorder], he is not eligible for a TDIU evaluation"); VAOPGCPREC 6-99 (June 7, 1999) (concluding that a "claim for [a TDIU rating] for a particular service- connected disability may not be considered when a schedular 100-percent rating is already in effect for another service- connected disability"). Thus, the Board referred the matter of entitlement to TDIU prior to July 26, 2004 to the RO for further action. The RO was requested to ascertain when the veteran first submitted a TDIU claim (formal or informal) and, if in order, adjudicate entitlement to that benefit prior to the July 26, 2004 effective date of the veteran's total evaluation for his mental disorder. However, it does not appear that this matter has yet been addressed by the RO and is, again, referred to the RO for action deemed appropriate. REMAND In the May 2007 remand decision, the Board noted that the evidence of record showed that the veteran had exhibited a range of motion of the right knee spanning from zero to 110 degrees. In addition, in the veteran's February 2003 VA examination, while the examiner noted that the veteran had "pain throughout range of motion," he also specifically reported that there was no additional limitation of motion of the knee due to pain, fatigue, weakness, or lack of endurance. Nevertheless, as the Court found that the Board had not sufficiently considered any limitation of motion caused by pain, the Board determined that an orthopedic examination was warranted. Thus, the Board remanded the veteran's claim for an increased rating for a right knee disability and directed the RO to afford the veteran with a VA orthopedic or joints examination to ascertain the current level of the right knee disability. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(c)(4), 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Pertinent range of motion testing was to be provided, with special attention to when the veteran experienced pain, fatigue, weakness, or any other relevant DeLuca symptoms. The clinician was also requested to opine whether it was at least as likely as not (50 percent or more likelihood) that the veteran had any additional loss of function of the right knee due to pain or flare-ups of pain. Pursuant to the Board's May 2007 remand decision, the veteran underwent a VA examination in August 2007 that was conducted by W.T.H., PA, and Q. L.L., M.D. Upon physical examination, there was no instability. In the supine position, flexion of the right knee was from zero to 42 degrees, with pain beginning at 30 degrees. Extension was from "30 to zero degrees," with pain beginning at 30 degrees. The examiners noted that when the veteran was in sitting position, his right knee passively flexed to 90 degrees with complaints of pain at 80 to 90 degrees. The veteran could actively extend the knee to "60 degrees" when sitting, with pain beginning at around 40 degrees and limiting extension to 60 degrees. At the time of the veteran's August 2007 VA examination, X- rays were taken of his knees. The x-rays were reported to show small patellar osteophytes. Joint spaces were preserved, bilaterally. There was no acute fracture or joint effusion. No diagnosis was provided in the x-ray report. After a review of the physical examination findings and the x-ray report, the examiners diagnosed the veteran with chronic right knee strain. According to the examiners, the discrepancy between the range of motion findings in sitting and supine positions, and the lack of significant disease on x-ray evaluation, indicated that the veteran's problem was ligamentus and/or capsular, related to disuse for years. Thus, the examiners opined that it was less likely than not that disease process within the knee was the cause of the current level of disability. They stated that there appeared to some level of increase in disability, but they would have to resort to speculation to try and quantify that level. The regulations define normal range of motion of the knee as zero degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. For VA purposes, range of motion is determined from the sitting position, and not the supine position. In the August 2007 VA examination report, the examiners noted that in the sitting position, the veteran's right knee passively flexed to 90 degrees with complaints of pain at 80 to 90 degrees. However, the two examiners that performed this evaluation did not report as to whether the veteran had any additional loss of function of the right knee due to pain or flare-ups of pain. In addition, the clinicians did not indicate whether the veteran had full extension. The examiners noted that the veteran could actively extend the knee to 60 degrees when sitting. Given that normal extension is to zero degrees, it is unclear as to whether or not the veteran has full extension. Moreover, in regard to the examiners' opinion that the veteran's increase in disability was due to stiffening/shortening of capsular and ligamentus structures in the knee, related to disuse for years, and not due to any real progression in disease of the knee joint, it is not clear that the clinicians were stating that the veteran's increase in disability was due to a nonservice- connected ligamentus problem versus his service-connected right patellofemoral syndrome. That is, the clinicians did not specify as to whether the "disease process within the knee" was a reference to the veteran's patellofemoral syndrome; they did not address whether the latter service- connected right knee disability was related to the ligamentus problem or whether the ligamentus problem was a distinctly separate disability. It is pertinent to note that, with respect to any nonservice- connected knee disability that may be present, the Court of Appeals for Veterans Claims has held that under the duty to assist, where there are service- connected and nonservice- connected disabilities affecting the same bodily part or system, medical evidence is required to permit the Board and adjudicators to determine the degree of disability attributable to the service-connected as opposed to the nonservice-connected disorder. See Waddell v. Brown, 5 Vet. App. 454 (1993). In Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that regulations require that when examiners are not able to distinguish the symptoms and/or degree of impairment due to a service-connected disability (here right patellofemoral syndrome) from any other diagnosed disorder, VA must consider all symptoms in the adjudication of the claim. As such, unless a VA examiner, based on his or her review of the record, concludes that some of the veteran's right knee symptoms are unrelated to his service- connected patellofemoral syndrome, those symptoms that cannot be distinguished from his service-connected disorder must be considered in the evaluation of this disability. Id. at 182. In view of the foregoing, to include the incomplete nature of the range of motion findings from the veteran's August 2007 VA examination, it is the Board's determination that the RO has not complied with the instructions from the May 2007 remand. The Court has stated that compliance by the Board and the RO with remand directives is neither optional nor discretionary. Where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In light of the above, the veteran must be afforded a more thorough examination. Id.; 38 C.F.R. § 3.327 (2007). Accordingly, the case is REMANDED for the following action: 1. The RO must afford the veteran a VA orthopedic or joints examination of the right knee to ascertain the current level of severity of this disability. The examination is to be conducted by an examiner(s) other than W.T.H., PA. or Dr. Q. L.L. The VA examiner should review the relevant medical evidence in the claims file, obtain a history from the veteran, conduct a physical examination of the knees, and order any tests that are deemed necessary. The examiner is also asked to review the X-rays taken at the time of the August 2007 VA examination and provide an impression, to include whether there is evidence of arthritis of the right knee. Testing must include pertinent range of motion studies of the knees in the sitting position with special attention to at what point (in terms of degrees of motion) the veteran experiences pain, fatigue, weakness or any other relevant DeLuca symptoms with flexion and extension of the right leg. Normal range of motion for VA compensation purposes is from 0 degrees of extension to 140 degrees of flexion; accordingly, any loss of extension, if present, should be reported as -5 degrees, - 10 degrees, etc. The clinician is requested to opine whether it is at least as likely as not (50 percent or more likelihood) that the veteran has any additional loss of function (i.e., motion) of the right knee due to pain or flare-ups of pain, supported by adequate pathology; and whether it is at least as likely as not the veteran has any additional functional loss due to weakened movement, excess fatigability, incoordination, or flare- ups of such symptoms or any other relevant symptoms or signs. Such determinations should be expressed, if feasible, in terms of additional loss of motion of the joint. To the extent that is possible, the examiner should distinguish between symptoms and functional impairment due to the veteran's service-connected right patellofemoral syndrome from any nonservice-connected disability of the right knee that may be present. 2. Then, after completion of any other notice or development indicated by the state of the record, with consideration of all evidence added to the record subsequent to the last supplemental statement of the case (SSOC), the RO must readjudicate the veteran's claim for a rating in excess of 10 percent for patellofemoral syndrome of the right knee. If the claim is not granted to the veteran's satisfaction, the RO should issue an appropriate SSOC and provide an opportunity to respond. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).