Citation Nr: 1104293 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 08-16 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service-connected chondromalacia, left patella, with status post hemipatellectomy (left knee disability). 2. Entitlement to an evaluation in excess of 10 percent for service-connected chondromalacia, right patella, status post arthroscopy (right knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from December 1974 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2009, the Veteran testified at hearing before the undersigned Acting Veterans Law Judge. 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. REMAND The Veteran seeks an evaluation in excess of 10 percent for the limitation of motion of his left and right knee disabilities since December 1, 2007. In support, in his statements and testimony, the Veteran reports having constant daily left and right knee pain. After a careful review of the record, the Board finds that the lay and medical evidence of record, including the VA examination reports, do not include sufficient information with which to evaluate the Veteran's left and right knee disabilities. The medical evidence in this case shows that the Veteran experiences pain that limits his left and right knee flexion and extension; however, they do not indicate the extent to which it is limited during flare-ups, as well as the extent to which the Veteran's left and right knee extension are flexion are accomplished without pain. Thus, the Board finds it necessary to secure another examination to ascertain the current nature of the Veteran's left and right knee disabilities. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R § 3.159 (VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous evaluation where necessary to reach a decision on the claim.) The ratings for limitation of flexion and for limitation of extension are found under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Diagnostic Codes predicated on limitation of motion do not prohibit consideration of a higher rating for flare ups or for functional loss due to weakness, excess fatigability, incoordination, or pain on use. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In June 2007, the Veteran was afforded a VA joints examination. He reported pain in the right knee as a 4 on a scale of 1 to 10, and in the left knee as 4 to 5. He also reported flare-ups of pain to 8 to 9 out of 10 when he climbs up and down ladders or stairs or has any standing over 20 minutes. Physical examination revealed range of motion of the right knee as 0 to 115 degrees, with no change with repetition. He reported pain throughout the range of motion. The left knee had a range of motion of 0 to 120 degrees. The examiner noted that there was mild to moderate discomfort associated with examination of the bilateral knees and that it was conceivable that pain could further limit function particularly with repetition. In January 2009, the Veteran was afforded another VA joints examination. At this time, he reported bilateral baseline pain of 7 on a scale of 1 to 10, with flare-ups of 10 out of 10 with any movement, standing, sitting, climbing, walking, or getting up from bed, chair, the floor, and tub. Physical examination revealed range of motion of 0 to 90 degrees, bilaterally. There was no reduction in range of motion with repetition; however, there was increased pain. The Veteran was afforded his most recent VA examination in March 2010. He reported continued bilateral knee pain with almost all activity, including his ability to do his job, "because he is unable to walk, stand, and bend his knees." Although the examiner noted that repetitive motion did not change the Veteran's level of pain or his range of motion for either knee, the Veteran reported that he had pain every minute of the day. Physical examination revealed trace effusion of the right knee, with range of motion to within 5 degrees of extension and to approximately 75 degrees of flexion, with pain. His left knee was mildly tender to palpation, and left his knee was noted as within 5 degrees of extension and with flexion to 70 degrees. The March 2010 examiner noted that the Veteran does have pain, and "it is certainly feasible he could have increasing pain and loss of motion as he described, particularly after activity." To summarize, the VA examination reports do not adequately discuss how the Veteran's range of motion is affected by pain, i.e., the extent of his pain-free left and right knee flexion and extension. A remand is thus necessary to determine his pain-free left knee and right knee flexion and extension, to include any possible limitation of motion due to pain, weakness, or fatigue, as well as any additional loss of motion or pain during periods of flare ups. See C.F.R. § 4.71a, Diagnostic Codes 5260-5261 (2010); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups"). Accordingly, the case is REMANDED for the following action: 1. After associating any pertinent, outstanding records, afford the Veteran an appropriate VA examination. The Veteran's claims file should be made available and reviewed by the examiner. The examiner must also record the Veteran's report of his pain and limitation of motion of his left and right knees. The VA examiner should then conduct all necessary testing, including range of motion studies (measured in degrees, with normal range of motion specified). The examiner must determine whether there are objective clinical indications of pain or painful motion; weakened movement; premature or excess fatigability; or incoordination; and, these determinations should be expressed in terms of the degree of additional range of motion loss (at both extension and flexion) due to such factors. This includes instances when these symptoms "flare-up" or when either knee is used repeatedly over a period of time. This determination should also be portrayed, if feasible, in terms of the degree of additional range of motion loss due to these factors. In doing so, the examiner must acknowledge the Veteran's report of pain and estimate his pain-free left and right knee flexion and extension, both on examination, during the normal course of the Veteran's typical day, as well as during periods of flare-up. All findings and conclusions should be set forth in a legible report. 2. Then, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. 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 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). _________________________________________________ STEVEN D. REISS Acting 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) (2010).