Citation Nr: 1300097 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 08-29 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating in excess of 20 percent for chondromalacia of the left knee, prior to March 15, 2012. 2. Entitlement to an increased disability rating in excess of 20 percent for chondromalacia of the left knee, beginning May 1, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active service from January 1974 to May 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which decreased the Veteran's disability ratings for his right and left knee disabilities to 10 percent disabling. Subsequently, in June 2009, the Board of Veterans' Appeals issued a decision restoring a 30 percent disability rating for the Veteran's right knee disability, and restoring a 20 percent disability rating for the Veteran's left knee disability. Additionally, the Board remanded claims of an increased disability rating for his right and left knee disabilities for further examination, which was completed. In February 2011, the Board again remanded the Veteran's claims for a Travel Board Hearing to be scheduled. The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in May 2011. A written transcript of this hearing was prepared and incorporated into the evidence of record. In September 2011, the Board denied the Veteran's claim for an increased disability rating for his right knee disability and remanded the issue of an increased disability rating for his left knee disability. In an August 2012 rating decision, the Appeals Management Center (AMC) assigned a temporary 100 percent rating, based on surgical and other treatment requiring convalescence, beginning March 15, 2012. The rating returned to 20 percent as of May 1, 2012. The issue of entitlement to an increased disability rating in excess of 20 percent for chondromalacia of the left knee, beginning May 1, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to March 15, 2012, the Veteran's service-connected chrondromalacia of the left knee approximated a severe impairment of the left knee. CONCLUSION OF LAW Prior to March 15, 2012, the criteria for an evaluation of 30 percent for chrondromalacia of the left knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5299-5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in April 2007 that fully addressed all notice elements. The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date, and met the generic requirements remaining under Vazquez-Flores. Accordingly, no further development is required with respect to the duty to notify. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This 'duty to assist' contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records and examination reports, the Veteran's lay statements and testimony before the undersigned have been associated with the claims file. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in February 2009, February 2011, and September 2011. In February 2009, the Board remanded the claim for an increased disability rating for his left knee in order to obtain medical records from the VA, an authorization to obtain employment records from the Unites States Postal Service (USPS), and to provide the Veteran with a VA examination. Pertinent VA medical records were obtained and associated with the claims file. The Veteran was provided with a letter in June 2009, asking him to provide information regarding his employment with the USPS; however, the Veteran did not respond to this request. Finally, the Veteran was provided with a VA examination in October 2009. In February 2011, the case was remanded in order to provide the Veteran with a hearing before a Veterans Law Judge. This was provided to the Veteran in May 2011. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge clarified the issues on appeal and explained the evidence necessary to establish the claim for a higher disability rating, and inquired about outstanding medical evidence and dates of treatment. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) extant at the time of the hearing. Finally, in September 2011, the claim was remanded in order to obtain any outstanding VA medical records and to provide the Veteran with another examination of his left knee disability, as he claimed that his disability had worsened since his last examination. VA medical records were obtained and associated with the claims file. The Veteran was provided with the required examination in November 2011. With regard to the examinations provided pursuant to the February 2009 and September 2011 remands, the Board finds that these VA examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe the left knee disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased rating - rules and regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). VA regulations instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, No. 09-2169, 2011 WL 3672294, (Vet. App. Aug. 23, 2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not 'duplicative of or overlapping with the symptomatology' of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Background April and July 2007 VA medical records reflected that the anterior drawer test on his left knee was positive. Passive and active flexion were to 112, and active flexion was normal. Knee alignment was valgus and strength was 5/5. Anterior Lachman and posterior drawer tests were normal. An August 2007 VA examination report shows that the Veteran reported pain, weakness, stiffness, swelling, heat and redness, instability or giving way, locking, fatigability, and lack of endurance. He had severe flare-ups that occurred one or two times per month, lasting four to five days and resulted in additional locking up of his left knee. The Veteran noted that during these flare-ups, he could not walk due to his knee locking up, swelling and pain. He wore a brace on his left knee. He had flexion from 0 to 100 degrees, with no change with repetitive motion. Pain began at 80 degrees. There was no ankylosis. The examiner indicated that there was pain on motion, fatigue, weakness, lack of endurance, with no additional limitation following repetitive use. There was no instability, and his Lachman's and McMurray's tests were negative. A July 2007 X-ray of the Veteran's left knee revealed mild osteoarthritis, unchanged since the previous examination in September 2006. November 2007 and April 2008 VA medical records reflect increasing left knee pain with history of osteoarthritis. A November 2007 magnetic resonance imaging study (MRI) of the left knee revealed a horizontal tear of the posterior horn of the lateral meniscus, strain versus partial tear of the anterior cruciate ligament, mild degenerative changes of the medial compartment, and mild subcutaneous infrapatellar edema. An April 2009 private medical record shows the that passive flexion was to 110 degrees and flexion strength was normal. Anterior drawer test was positive. Passive extension and strength was normal. Posterior drawer test at 90 degrees was normal. Varus test at 0 degrees was 1+, and active extension was normal. An October 2009 VA examination report shows that the Veteran wore a brace on his left knee. He reported pain, swelling, tenderness and stiffness in the knee, but no giving way, incoordination, or decreased speed of joint motion. Upon examination, the Veteran's left knee had no instability or other knee abnormalities; however, the Veteran reported tenderness. Range of motion was 0 to 120 degrees, with objective pain on motion but no additional limitations after three repetitions of range of motion. The examiner diagnosed degenerative joint disease of the left knee. The Veteran reported that he had been employed full time as a mail hander for twenty years, but had lost six weeks in the prior year due to right knee surgery and both knee conditions. November 2009 and April 2010 VA X-rays of the Veteran's left knee revealed stable, minor degenerative changes. At a May 2010 VA examination, the Veteran's range of motion of his left knee was -10 to 105 degrees, with objective evidence of pain on motion but no additional limitations after three repetitions of range of motion. A February 2011 VA MRI revealed mild medial collateral ligament (MCL) strain, but no other abnormalities. A November 2011 VA examination report shows that the Veteran reported that his left knee locked and gave way. He reported severe pain that worsened due to the weather. He was due to undergo a knee replacement, but it had been postponed due to elevated blood sugars. The Veteran reported flare-ups that occurred two to three times per week and lasted for one to two days, with increased swelling/locking and pain. He reported missing two weeks of work over the previous year due to his left knee disability. Upon examination, the Veteran's left knee range of motion was 10 to 100 degree, with pain beginning at 80 degrees. The Veteran's range of motion was not further limited on repetitive range of motion testing. The Veteran was noted to have weakened movement, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with standing and weight bearing. There was no evidence of instability. The Veteran reported that he was employed driving a forklift full time, worked at the post-office, and occasionally had to push a 300 pound cart with the assistance of others. The Veteran was provided with a note from his orthopedist not to drive a tow motor because it required him to stand and it was too painful. Analysis The Veteran's left knee disability is rated at a 20 percent disability rating under Diagnostic Codes 5299-5257. 38 C.F.R. § 4.71a. VA regulations provide that conditions not listed in the rating schedule will be rated by analogy and coded with the first two numbers of the schedule provisions for the most closely related body part and '99.' Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability of the knee. A 20 percent rating is warranted for a moderate knee disability, and a 30 percent rating is warranted for a severe knee disability. 38 C.F.R. § 4.71a Diagnostic Code 5257. In this case, the Veteran's left knee disability is rated by analogy under Diagnostic Code 5257 based on a moderate impairment of the left knee, even though the clinical evidence of record does not reflect instability. The Board finds that a disability rating of 30 percent is warranted for the Veteran's chondromalacia of the left knee. Overall, the evidence of record reflects that the Veteran's left knee disability approximates a severe knee impairment. The Veteran has reported such symptoms as pain, weakness, swelling and tenderness, with severe flare-ups involving increased locking and swelling of the left knee. The Veteran is competent to report these symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In addition, these reports have been consistent and there is no contradictory evidence in the record. As such, his statements are considered credible. The evidence also reflects that the Veteran wears a brace on his left knee, and that his disability causes limitations in standing and walking. As such, the Board finds that the disability picture associated with his service-connected left knee disability more nearly approximates a severe impairment of his left knee, and therefore warrants a 30 percent disability rating under Diagnostic Code 5257, by analogy. VA's Office of General Counsel has stated that compensating a claimant for separate functional impairment under DC's 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained that if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. The evidence of record shows that the Veteran has been diagnosed with degenerative joint disease of the right knee, based on X-ray evidence of arthritis. However, in this case, as the Veteran is not rated under Diagnostic Code 5257 for instability, a separate disability rating for arthritis is not warranted. The Board has considered rating the Veteran under other Diagnostic Codes pertaining to disabilities of the knees in order to provide him with the most beneficial rating. The Diagnostic Codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2012). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Under VAOPGCPREC 9-04 (Sept. 17, 2004), separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint. The highest disability rating under Diagnostic Code 5260, is 30 percent; therefore a rating under this Diagnostic Code would not provide a higher disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. However, even factoring in the Deluca provisions, the Veteran's extension has only been limited to 10 degrees throughout the appeals period. There are no other Diagnostic Codes that would provide a higher disability rating and are relevant to the Veteran's claim. In this respect, there is no lay or medical evidence of ankylosis, impairment of the tibia and fibula by malunion or nonunion or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263 (2012). As such, the Board concludes that a disability rating of 30 percent is warranted for the Veteran's left knee disability, prior to March 15, 2012. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2011). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's left knee disability are contemplated by the criteria for rating disabilities of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257; DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, the evidence does not support referring this case for an extraschedular evaluation. TDIU considerations The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). The issue of TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case there has been no allegation or evidence of unemployability. On several occasions, the Veteran indicated that he is employed full time. Accordingly, the question of entitlement to TDIU has not been raised. ORDER A disability rating of 30 percent for chondromalacia of the left knee is granted, prior to March 15, 2012, subject to the regulations governing the payment of VA monetary benefits. REMAND As noted above, in August 2012, the AMC granted a temporary 100 percent disability rating for the Veteran's service-connected left knee disability, for convalescence from arthroscopic surgery on his left knee, beginning March 15, 2012 and continuing through April 30, 2012. The rating decision notes that an examination would be scheduled to determine the current nature and severity of his left knee disability; however, there is not subsequent examination report in the claims file or in Virtual VA. As such, this issue should be remanded in order to obtain the report from such examination, or if one has not yet been provided, to afford the Veteran a VA examination to determine the current nature and severity of his left knee disability, following his March 2012 surgery and recovery. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the report of examination provided to the Veteran following his period of convalescence from the March 15, 2012 surgery, and associate the report with the claims file. 2. If no such examination has been provided, schedule the Veteran for an examination to determine the current nature and severity of his service-connected left knee disability. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. The examiner should report the range of left knee flexion and extension in degrees. The examiner should determine whether the left knee disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups or pain. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. If there is pain on motion, the examiner should report the point in the range of motion when the pain becomes apparent. The examiner should also report whether there is instability or subluxation and express an opinion as to the severity of such instability or subluxation. A complete rationale should be given for all opinions and conclusions expressed. 3. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if 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. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs