Citation Nr: 1007294	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  04-25 181	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1. Entitlement to a disability rating in excess of 10 percent 
for degenerative arthritis of the right shoulder.

2. Entitlement to a disability rating in excess of 10 percent 
for degenerative joint disease of the left knee.


REPRESENTATION

Appellant represented by:	Peter J. Meadows, Attorney at 
Law


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

J. N. Moats, Counsel


INTRODUCTION

The Veteran had 20 years active duty service ending with his 
retirement in November 2002.

This appeal comes before the Board of Veterans' Appeals 
(Board) from rating decisions by a Regional Office (RO) of 
the United States Department of Veterans Affairs (VA).  In 
September 2006, the Veteran had a hearing at the RO before 
the undersigned Veterans Law Judge.  In December 2006, the 
Board remanded the case for additional development of 
relevant evidence.  Subsequently, the Board denied the 
Veteran's claim in August 2007, and the Veteran appealed to 
the United States Court of Appeals for Veterans Claims 
(Court).  The Court issued a Memorandum Decision in June 2009 
vacating the Board's decision and remanding the case.  
Judgment was entered in July 2009.  

The August 2007 Board decision also denied ratings in excess 
of 10 percent for instability of the left knee and a surgical 
scar on the left knee.  However, the Veteran did not appeal 
these issues to the Court.  

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the 
appellant if further action is required.


REMAND

The Court vacated and remanded the Board's decision because 
the Board failed to adequately address functional loss due to 
pain as required under the criteria set forth in DeLuca v. 
Brown, 8 Vet.App. 202 (1995).  In the instant case, the Court 
stated that the Board must provide an adequate reasons and 
bases addressing how the appellant's pain, which was present 
throughout his entire range of motion, could limit his 
functional ability when the right arm and left knee were used 
repeatedly over a period of time.  Accordingly, per the Court 
decision, the Veteran should be afforded another VA 
examination to determine the severity of his service-
connected degenerative arthritis of the right shoulder and 
degenerative joint disease of the left knee and to adequately 
address functional loss due to pain per DeLuca.    

Accordingly, the case is REMANDED for the following actions:

1.  The Veteran should be afforded an 
appropriate VA orthopedic examination to 
ascertain the severity of his 
degenerative arthritis of the right 
shoulder and degenerative joint disease 
of the left knee.  It is imperative that 
the claims file be made available to the 
examiner for review in connection with 
the examination.  Any and all indicated 
evaluations, studies, and tests deemed 
necessary by the examiner should be 
accomplished, and complaints and clinical 
manifestations should be reported in 
detail.  

In accordance with the guidance from the 
Court in DeLuca, the examination report 
should address any weakened movement of 
the right shoulder and left knee, 
including weakened movement against 
varying resistance, excess fatigability 
with use, incoordination, painful motion, 
pain with use, and provide an opinion as 
to how these factors result in any 
limitation of motion.  If the Veteran 
describes flare-ups of pain, the examiner 
should offer an opinion as to whether 
there would be additional limits on 
functional ability during flare-ups, and 
if feasible, express this in terms of 
additional degrees of limitation of 
motion during the flare-ups.  Further, 
per the Court Memorandum Decision, the 
examiner should also offer an opinion as 
to how the Veteran's pain could limit his 
functional ability when the right arm and 
left knee are repeatedly used over a 
period of time, and if feasible, express 
this in terms of additional degrees of 
limitation of motion.  A clear rationale 
for all opinions expressed must be given. 

2.	Thereafter, the issues on appeal 
should be
readjudicated.  The Veteran and his 
representative should be provided with a 
supplemental statement of the case and 
afforded the appropriate opportunity to 
respond thereto.  Thereafter, the case 
should be returned to the Board for 
further appellate consideration, if 
otherwise in order. 

The appellant 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. 2009).



_________________________________________________
ALAN S. PEEVY
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) (2009).