Citation Nr: 1306597 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 03-08 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an increased evaluation for left knee limitation of extension, rated 10 percent disabling effective from October 12, 2001, and rated 30 percent disabling effective from April 22, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from March 1987 to July 1990. The appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran's April 2001 claim for an increased disability rating for a left knee disorder was denied by a February 2002 RO rating action. The Veteran perfected an appeal of that denial. The Board remanded the claim in November 2004. Following claim development, the Board denied the claim in June 2006. The Veteran appealed the June 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court), and the Court by an October 2007 Memorandum Decision vacated that June 2006 decision and remanded the case. Consistent with that Court remand, the Board in February 2009 remanded the claim for additional development. The Veteran and his spouse testified before the undersigned Acting Veterans Law Judge at a Central Office Board hearing conducted in Washington, D.C., in August 2011. A transcript of that hearing is of record. The Board notes that the Veteran was also granted, prior to the separate rating for left knee limitation of extension, a 30 percent evaluation for left knee derangement, under Diagnostic Code 5257. 38 C.F.R. § 4.71a (2012). The Board by the December 2011 decision denied an increased evaluation for that left knee derangement, while (as noted) remanding the claim for a separate disability evaluation for limitation of extension. By a January 2012 rating action, the Appeals Management Center (AMC) assigned the disability rating in question for limitation of extension of the left knee, distinct from the 30 percent already assigned for knee derangement under 38 C.F.R. § 4.71a, Diagnostic Code 5257. The AMC granted for limitation of extension of the knee, under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a 10 percent evaluation effective from October 12, 2001, and a 30 percent evaluation effective from April 22, 2010. These ratings are in addition to the rating assigned for left knee derangement. The Veteran in a September 2010 statement raised an implied claim for service connection for a back disorder secondary to his service-connected left knee disorder. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 has been assigned a current 30 percent disability rating for his left knee on the basis of limitation of extension under Diagnostic Code 5261, and has been assigned an additional current 30 percent disability for the left knee on the basis of knee derangement under Diagnostic Code 5257. 38 C.F.R. § 4.71a (2012). This results in an effective combined disability rating of 50 percent, if only the knee is considered. 38 C.F.R. § 4.25 (2012). The amputation rule precludes a higher schedular rating for the knee than the 60 percent assignable for leg amputation at the distal thigh level. See 38 C.F.R. § 4.71a, Diagnostic Code 5162 (2012) (code for rating amputation at the middle or lower thirds levels of the thigh); 38 C.F.R. § 4.68 (2012) (amputation rule). There thus remains the possibility of assignment of additional schedular disability for the knee. The Veteran also contends that he should be assigned a still higher evaluation for the left knee on an extraschedular basis due to ongoing pain in the knee, locking, stiffness, and instability or giving way, and resulting impacts on employment. The regulatory criteria for extraschedular consideration are as follows: The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). At his April 2010 VA examination for compensation purposes, the Veteran reported missing four months of work in the prior year due to his left knee. His authorized representative in a December 2012 statement stated the Veteran's work as a groundkeeper required that he use his lower extremities, and noted that the Veteran required the use of a cane and a left knee brace for ambulation. The Board remanded the case in December 2011 for referral for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1) (2012). The Director of Compensation and Pension Services, provided an extraschedular determination in November 2012, finding that an extraschedular rating was not warranted for the Veteran's left knee disorder based on the evidence of record. In a January 2013 statement the Veteran asserted that he had a balance deficit and that he suffered from a risk of falling due to the knee. He also contended that additional ratings were warranted under Diagnostic Codes 5258 and 5259. It unclear from the record whether the Veteran currently has marked interference with employment due solely to the knee (if he has marked interference with employment at all), versus due to the knee plus other causes. With the Veteran's assistance, records from the Veteran's current or recent employer(s) should be sought, including any records reflecting amount of time lost from work and reasons for time lost, as well as any physical examination reports, and any additional medical records, including any records of physical or occupational therapy. The Veteran has in recent months and years asserted instability in the knee, yet no instability was detected upon VA examination for compensation purposes in April 2010, or indeed upon March 2011 treatment evaluation including as informed by MRI imaging. Thus, recent assertions may reflect an increase in disability, or may merely reflect ongoing disabling conditions of the knee including associated pain which may mimic instability. Moderate to severe osteoarthritic changes are noted in treatment records, including bone-on-bone conditions in the knee. Such indications of possible increase in disability since the most recent examination for compensation purposes in April 2010 call for a further examination. An examination will be requested whenever VA determines, as in this case, that there is a need to verify the severity of a disability. See 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide specific information as to any evidence of additional treatment or rehabilitation or examination not yet associated with the claims file, including particularly as related to his left knee disorder, as well as records of treatment for any other disabilities, including any back disorders. Afford him the opportunity to submit any additional information or evidence. 2. With appropriate authorization, all pertinent treatment records not yet obtained, including from VA sources and private sources, should be obtained and associated with the claims file. 3. With appropriate authorization, seek from the Veteran's current employer and most recent employers since 2000, records pertaining to lost work and any disability, including disability findings, accommodations afforded the Veteran due to disability, performance evaluations, records of missed work including reasons for missed work, and any records of disability care or treatment or medical evaluation. All requests, records, and responses received should be associated with the claims file. 4. Thereafter, schedule the Veteran for examination to address the Veteran's left knee disability. The examination is to address the nature and severity of the Veteran's service-connected left knee disorder. The claims file, including a copy of this Remand and any additional evidence obtained, must be made available to the examiner for review. All tests and studies deemed necessary by the examiner should be conducted, in order to obtain, as accurately as possible, a true picture of the nature and extent of the knee disability and its interference with employment activities. These tests should also include validity testing of the Veteran's responses. The tests and studies performed, and their results, should be discussed in the examination report. The examiner should do the following: a. Provide an assessment of the severity of disability in the left knee. Address all pertinent aspects of the left knee disability, including instability and range of motion and any functional impairment(s) in the knee. b. The examiner should explicitly state his or her conclusions regarding the Veteran's credibility with regard to assertions relevant to his complaints associated with his left knee. In this regard, the examiner should address the extent to which the Veteran's complaints of symptoms or impairment in functioning as associated disorders the subject of the examination are consistent or inconsistent with or are explained by or not explainable by objective findings. c. The examiner should provide a rationale for all assessments and opinions he or she provides, and the factors upon which each medical assessment or opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to unsupported speculation, the examiner must provide a complete explanation why this is so. 5. Thereafter, the RO/AMC should readjudicate the remanded claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. 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 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). _________________________________________________ Alexandra P. Simpson 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) (2012).