Citation Nr: 1306120 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-32 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased disability rating for the service-connected right knee patellofemoral syndrome with degenerative joint disease and history of avulsion fracture, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from March 1986 to February 1989. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that decision, the RO denied an increased rating, and continued the 10 percent disabling rating previously assigned, for the service-connected patellofemoral syndrome of the right knee with laxity of the anterior cruciate ligament and history of avulsion fracture of the anterior tibial spine. In December 2012, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting at VA's Central Office in Washington, DC. A transcript of his testimony is associated with the claims file. 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 Veteran seeks an increased disability rating for the service-connected right knee disability, currently rated as 10 percent disabling. He asserts that his knee pain and swelling has gotten worse since his last VA examination in April 2011. In addition, he has expressed disagreement with the findings provided on a VA examination report from August 2006. Historically, service connection was initially established for a right knee disability in December 1994. Pursuant to a December 1994 rating decision, the RO found the Veteran's knee disability to be service connected, and assigned an initial 10 percent disability rating under Diagnostic Code 5299-5257, characterizing the disability as patellofemoral syndrome of the right knee with laxity of the anterior cruciate ligament and history of avulsion fracture of anterior tibial spine. When the Veteran filed his claim for an increased rating in May 2006, he reported that his knee pain had worsened, that he had more knee stiffness, and that he was no longer able to engage in certain physical activities such as riding a bike or playing volleyball. A VA examiner in August 2006, found no abnormalities of the right knee when compared to the left side on examination, except for the healed arthroscopy incisions. There was no tenderness, swelling, instability or limitation of motion. In contrast to the Veteran's assertions, the examination report notes that the Veteran denied locking, popping or other mechanical symptoms within the right knee; and, the Veteran denied any affect on his activities of daily living or any other functional limitation associated with reported flare-ups of pain and instability, other than an inability to do heavy lifting on the job. The examiner referred to x-ray findings from studies taken on the same day as the exam which note evidence of loose bodies and joint effusion, as well as degenerative type changes. The diagnosis was healed right ACL avulsion fracture and right knee posttraumatic arthritis. The examiner commented that despite the pathology, the Veteran continued to have good symptomatic control. Based on the x-ray findings and VA examination report from August 2006, the RO issued a rating decision in December 2006 that confirmed and continued the previously assigned 10 percent rating for the service-connected patellofemoral syndrome of the right knee with laxity of the anterior cruciate ligament and history of avulsion fracture of the anterior tibial spine. Significantly, the diagnosis on examination of arthritis was the basis upon which the RO continued the 10 percent rating. Prior to this, the Veteran's service-connected right knee disability was rated pursuant to "other knee disabilities" on the basis of subluxation or lateral instability under Diagnostic Code 5257. The RO indicated in the narrative portion of the rating decision that the continuation of the 10 percent rating was based on the Veteran's arthritis, but never explained why the rating code was changed from 5299-5257 to 5003-5262. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the Veteran's two arthroscopic right knee procedures (1989 and 1995) completed prior to the Veteran's May 2006 claim for increase could have certainly repaired or corrected any instability and/or subluxation of the right knee, thereby providing a basis for the change in diagnostic code, no such explanation is provided by any medical professional or the RO. Moreover, the Veteran underwent another right knee arthroscopic surgery in December 2009, during the course of the appeal, and the medical evidence is unclear as to pre- and post-surgical changes. Because the evidence of record, at different times during the course of this appeal has shown right knee laxity, instability, reports locking of the knee, and loose bodies on x-ray, there remains some question as to whether the Veteran is entitled to a separate rating for conditions of the right knee that are not associated with limitation of motion. Importantly, it is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, a comprehensive VA examination is necessary to determine whether and if so when, during the course of the appeal, the Veteran's right knee disability was productive of loose bodies, instability, subluxation, effusion, and/or arthritis. The Veteran continues to maintain that his right knee disability is continuing to get worse, and asserts that the findings on examination do not provide an accurate disability picture with regard to the right knee. At his most recent VA examination in April 2011, the Veteran reported right knee pain, grinding, swelling, sharp and continuous pain, locking and buckling of the knee. The Veteran reported flare-ups of knee pain twice daily. Although no ligament laxity was noted on examination, the examiner found that the Veteran demonstrated a +1 laxity with both varus and valgus testing. The Veteran also had a +1 Lachman's examination as well as a +1 drawer. Based on the Veteran's competent reports of increasing right knee pain, despite the December 2009 arthroscopic repair, another VA examination is necessary to determine the current nature and severity of the service-connected right knee disability. As noted above, the matter requires clarity by a medical professional who can provide a more detailed explanation of the evolution of the Veteran's overall disability picture, and most importantly, from May 2006 to the present. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327(a). Generally, reexaminations are required if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. Although the Veteran underwent an examination in April 2011, he has indicated that his disability has worsened. Therefore, the Veteran should be scheduled for a new VA compensation and pension examination. Prior to the examination, up-to-date treatment records should be obtained. Finally, the issue of entitlement to a temporary total disability rating based on the need for convalescence after surgery was initially addressed in a May 2012 Supplemental Statement of the Case (SSOC) where it was determined that the Veteran's circumstances surrounding his 2009 knee arthroscopic procedure did not meet the minimum requirements for entitlement to a temporary total rating based on the need for convalescence following surgery. In January 2013, the Board received additional evidence from the Veteran with respect to that claim. Because the underlying claim of entitlement to a disability rating in excess of 10 percent is being remanded for additional development, the RO should consider this new evidence on remand with respect to the inextricably intertwined issue of entitlement to a temporary total disability rating based on the need for convalescence following surgery. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the right knee disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After completion of #1 above, schedule the Veteran for an appropriate VA examination to set out orthopedic findings and determine the current severity of his service-connected right knee disability with specific findings of impairment from May 2006 to the present reported in detail. The examiner should specifically indicate whether arthritis is present (confirmed by X-ray findings as indicated), and whether it has been present since May 2006. The examiner should also specify whether there is recurrent subluxation or lateral instability of the right knee, and/or whether the evidence of record establishes evidence of recurrent subluxation and/or lateral instability at any time since May 2006. If any such instability or subluxation is shown, the examiner should be specific as to the time period covered. Finally, the examiner should specify whether the service-connected right knee has ever been manifested by semilunar, dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint, and if so, the examiner should specify at what points since May 2006 the Veteran's service-connected right knee disability was productive of this symptomatology. The examiner should consider medical findings prior to, and since the December 2009 arthroscopic right knee surgery, as well as the Veteran's testimony that he right knee pain, and overall disability picture is continuing to worsen. In this regard, the examiner should describe what the 2009 surgery was intended to correct, and whether that surgery was successful, in light of the Veteran's continued complaints of worsening pain and increased functional limitations. The examiner should conduct range of motion studies of the right knee, expressed in degrees. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also indicate whether, and to what extent, the Veteran experiences likely functional loss of the right knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed. 3. Thereafter, readjudicate the issues on appeal, including whether the Veteran is entitled to a temporary total disability rating based on the need for convalescence. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL A. PAPPAS 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).