Citation Nr: 1301836 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 06-07 226A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a postoperative left knee meniscus injury. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from October 1978 to October 1982. Thereafter, he also served in the Alabama Army National Guard with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). As of May 2011, the Veteran was still active in the National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By a decision dated in March 2012, the Board denied the Veteran's claim of entitlement to a rating in excess of 10 percent. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and based on a Joint Motion for Remand (Joint Motion) the Court ordered the case to be remanded to the Board in October 2012. The Board's prior March 2012 decision also remanded a claim seeking entitlement to service connection for a cervical spine disorder for further development. The remand development ordered within the March 2012 decision has not yet been completed. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. VACATE VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the Veteran or his representative, or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904 (a) (2012). Here, based on a Joint Motion that found that the Board had failed to adequately address the evidence of record, the Court remanded the Board's decision on the issue of entitlement to an initial evaluation in excess of 10 percent for a left knee disorder. Therefore, the Joint Motion found that the Board's March 2012 decision failed to provide the Veteran due process under the law. Accordingly, in order to prevent prejudice to the Veteran, that part of the March 2012 decision of the Board that denied an initial evaluation in excess of 10 percent for a left knee disorder must be vacated, and a new decision will be entered as if that part of the March 2012 decision by the Board had never been issued. Left Knee The Veteran claims his left knee is more severe than currently rated with manifestations of pain, instability, locking, decreased range of motion, and occupational impairment insofar as he cannot stand for lengthy periods of time. Specifically, although the Veteran is currently rated 10 percent under Diagnostic Code 5260, for limited flexion, the JMR indicates the Board did not reasonably explain why an increased rating, or alternatively a separate rating, was not warranted on alternative diagnostic codes dealing with the knee. Ratings based on manifestations of lateral instability, recurrent subluxation, dislocated or removed semilunar cartilage that is symptomatic or cause frequent episodes of "locking," pain, and effusion into the joint. See generally, 38 C.F.R. § 4.71a, Diagnostic Codes 5257-5260 (2012). The medical evidence of record indicates the Veteran underwent a subtotal lateral mensicectomy in 2003. Since that time, there is some disparity as to the objective findings with regard to the Veteran's left knee. Medical records note manifestations such as instability, locking and joint effusion, whereas others specifically find no objective evidence to support instability, locking, or joint effusion. While the 2012 Board decision addressed the alternative diagnostic codes and found them inapplicable, the October 2012 Joint Motion found the Board's reasons and bases incomplete. The Board found that the "instability" noted by a private physician was "anterior" rather than lateral instability and, therefore, Diagnostic Code 5257 did not apply. The October 2012 Joint Motion directs the Board to address whether Diagnostic Code 5257 could be applied by analogy or, in the alternative, whether extraschedular considerations are appropriate for these manifestations not otherwise compensated for in the rating criteria. Cervical Spine The Veteran seeks service connection for a cervical spine disorder. The Veteran contends, and the evidence shows, that the Veteran injured his neck in June 2007 while serving in the Alabama Army National Guard. However, that injury occurred after the Veteran's period of active military service, and the evidence of record does not provide the dates corresponding to the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). Accordingly, it is impossible for the Board to determine whether the Veteran's neck injury occurred during a period of ACDUTRA or INACDUTRA. The evidence of record does not indicate that VA has made any attempts to locate the Veteran's service personnel records. Accordingly, a remand is required so that an attempt can be made to obtain any service records which would verify the dates of the Veteran's periods of ACDUTRA and INACDUTRA. 38 C.F.R. § 3.159(c)(2). If the Veteran's periods of ACDUTRA or INACDUTRA correspond with his neck injury in June 2007, the RO should provide the Veteran with a VA examination addressing the etiology of his current cervical spine disorder. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is remanded for the following action: 1. The RO must contact the National Personnel Records Center and all other appropriate sources to obtain the Veteran's complete service personnel records in order to identify his various periods of ACDUTRA and INACDUTRA. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. If the Veteran's ACDUTRA or INACDUTRA corresponds with his neck injury in June 2007, the Veteran must be afforded an appropriate VA examination to ascertain the etiology of his cervical spine disorder. The examiner must be provided with, and review, the entire claims file in conjunction with the examination. All necessary special studies or tests must be accomplished. After a thorough review of the Veteran's claims file, to include the Veteran's statements of record, the medical evidence including all service treatment records, and a discussion of each, the examiner must state whether any current cervical spine disorder is related to the Veteran's military service, or to any incident therein. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The Veteran must be afforded an examination to determine the current severity of his service-connected left knee disorder. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected left knee disorder. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected left knee disorder. The examiner must also state if there is lateral instability or recurrent subluxation. If anterior instability is found, the examiner must state whether this represents lateral instability, subluxation, dislocated semilunar cartilage, or impairment of the tibia or fibula. The examiner must state the degree of severity to which any lateral instability, anterior instability, subluxation, semilunar cartilage, or impairment of the tibia or fibula the extent to which the Veteran experiences functional impairments due to any such disorder found. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The VA examination reports obtained must be reviewed by the RO to ensure that they are in complete compliance with the directives of this Remand. If any report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. With regard to the left knee claim, consideration of separate ratings or extraschedular ratings must be addressed. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2012).