Citation Nr: 1124182 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 06-30 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for chondromalacia of the patella, status post resection of medial and lateral menisci of the left knee, evaluated as 10 percent disabling prior to February 4, 2009, and as 40 percent disabling from February 4, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shabnam Keyvan INTRODUCTION Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from December 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating actions in which the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida denied the Veteran's claim for an increased rating for his service-connected left knee disability. In September 2009, the Board remanded the Veteran's appeal to the RO, through the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development. Following completion of the requested actions, and specifically by an August 2009 rating action, the AMC granted an increased evaluation from 10 percent to 30 percent, effective from February 4, 2009, for the Veteran's service-connected left knee disability. In August 2009, the Veteran's claims folder was returned to the Board for further appellate action. In the August 2009 decision, the Board denied a disability evaluation in excess of 10 percent for the Veteran's service-connected left knee disability for the period of time prior to February 4, 2009, and increased the Veteran's disability evaluation for his service-connected left knee disability from 30 percent to 40 percent, effective from February 4, 2009. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2010 Order, the Court vacated the August 2009 Board decision, and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). This appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Here, the Veteran contends that he is entitled to separate disability ratings for the instability and the removal of his semilunar cartilage in his left knee pursuant to 38 C.F.R. §4.71a, Diagnostic Codes 5257 and 5259. In the August 2010 Joint Motion, the Court instructed the Board to discuss the August 2006 VA physical examination results, which were positive for signs of instability in the Veteran's left knee, and weigh this evidence against other evidence to determine whether the Veteran is entitled to a separate rating for left knee instability. The Court also requested that the Board determine whether residuals stemming from the Veteran's December 2002 partial medial meniscectomy and June 2007 partial lateral meniscectomy are symptomatic, and if so, whether the Veteran is entitled to a compensable rating based on these residuals. A review of the claims file reflects conflicting medical evidence throughout the years. Private medical records from the Florida Knee and Orthopedic Center dated in April 2001 reflect the Veteran's complaints that his left knee "buckles" and gives out on him at times. However, VA examination reports dated in July 2004 and June 2005 are clear for any complaints or signs of instability in the left knee. The Veteran did not report to have any instability in his knees during the July 2004 VA examination, and, while he complained of pain in his left knee during the June 2005 VA examination, a physical examination of the knee revealed no evidence of instability. Private medical records from various treatment centers dated from June 2001 to May 2006 show that the Veteran underwent numerous magnetic resonance imagings (MRIs) and physical evaluations of his left knee. The June 2001 MRI report revealed intact anterior cruciate ligaments (ACL), posterior cruciate ligaments (PCL), and medial and lateral collateral ligaments. Results from private medical evaluations dated in March 2006, April 2006 and May 2006 also revealed stable ligaments in all planes. The March 2007 VA examination report reflects the Veteran's complaints of giving way and a "locking" sensation in his knees. However, the Veteran did not report any episodes of instability, and physical examination of his left knee did not reveal any episodes of instability. In June 2007, the Veteran was diagnosed with left knee lateral meniscus tear and chondromalacia of the lateral, medial and patellofemoral compartments. He subsequently underwent a left knee arthroscopy, a partial lateral meniscectomy, and chondroplasty of all three compartments at a private medical facility. During a follow-up treatment session several days later, the physician discussed the Veteran's medical history and noted that he "had an anterior horn tear that was quite macerated, [and] probably...the cause of his instability episodes." The physician also noted that the Veteran "had some fraying of the anterior cruciate ligament anteriorly, which may have been giving him some anterior extension pain also." However, during a subsequent private treatment evaluation dated in July 2007, the Veteran reported an episode wherein his left knee gave way and buckled, causing him to fall down. He was provided a hinge knee brace for his left knee for support. As previously stated above, the Board finds the medical evidence and complaints made by the Veteran to be somewhat inconsistent throughout the years. The August 2006 VA examination report reflects the Veteran's complaints of instability, as well as medical findings of mild anterior and posterior left knee instability. Private treatment records evidence the Veteran's continued complaints of giving way and a buckling sensation in his knee even after his June 2007 left knee arthroscopy and partial lateral meniscectomy. The more recent VA examination reports reflect the Veteran's reported complaints of giving way in his left knee, but are clear for complaints, notations or findings of instability. With respect to residuals stemming from the Veteran's meniscectomy, a review of the record shows that the Veteran underwent a left knee arthroscopic partial medial meniscectomy and chondroplasty of medial femoral condyle and patella in December 2002. The surgical report reflects that approximately 25 percent of the meniscus was removed during the operation. The Veteran subsequently underwent a partial lateral meniscectomy in June 2007. Findings from the operative report reflected an intact meniscus that was "missing a portion of its body and posterior horn." During the August 2006 VA examination, the examiner observed evidence of meniscus abnormality and noted that the meniscus was surgically absent. However these same observations were not made during the March 2007 and February 2009 VA examinations. Again, the Board finds the medical evidence of record to be somewhat inconsistent throughout the years. The duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. See Peters v. Brown, 6 Vet. App. 540, 542 (1994). As it has been over two years since the Veteran's last VA examination and the Board is precluded from reading its own unsubstantiated medical conclusions and is instead bound by the medical evidence of record on these matters, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Specifically, under the circumstances, the Board finds that the Veteran should be afforded another VA medical examination to assess the current nature and severity of his left knee disability. In particular, the examiner should determine whether the Veteran's left knee exhibits signs of instability, and whether the Veteran experiences any residual symptomatology arising from the removal of the semilunar cartilage in his left knee. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The Veteran should be afforded an appropriate VA orthopedic examination to determine the nature and extent of the service-connected chondromalacia of the patella, status post resection of medial and lateral menisci of the left knee. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. Any testing deemed necessary, including X-rays, should be performed. All pertinent pathology associated with the service-connected left knee disability should be noted in the examination report. Specifically, the examiner should discuss the limitation of motion, or any ankylosis, associated with this disability. Also, the examiner should discuss whether the Veteran's left knee disability exhibits weakened movement, excess fatigability, or incoordination that is attributable to the applicable service-connected disorder. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. The examiner should also discuss the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his left knee repeatedly over a period of time. In addition, the examiner should discuss whether the Veteran exhibits any signs of instability in his left knee as well as whether any residuals arising from the Veteran's partial medial meniscectomy and/or partial lateral meniscectomy are symptomatic. If so, the examiner should describe the symptomatology that the Veteran experiences as a result of these particular surgical procedures. The examiner should also provide an opinion concerning the impact of the service-connected left knee disability on the Veteran's ability to work. A complete rationale for all opinions expressed must be provided. 2. After completing the above, and any other development deemed necessary, adjudicate the issue of entitlement to an increased rating for chondromalacia of the patella, status post resection of medial and lateral menisci of the left knee, evaluated as 10 percent disabling prior to February 4, 2009, and as 40 percent disabling from February 4, 2009. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2010). The Veteran has the right to submit additional evidence and argument on the matter that 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ THERESA M. CATINO 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 Court. 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) (2010).