Citation Nr: 1308096 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 06-28 092A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased rating for a left knee disability, currently rated 10 percent disabling on the basis of symptomatic semilunar cartilage removal and 10 percent disabling on the basis of degenerative arthritis with pain and limitation of motion since September 14, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1983 to April 1987. This matter initially came before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In that decision, the RO denied entitlement to a rating in excess of 10 percent for residuals of a left knee injury. In November 2009, the Board remanded this matter for further development. In July 2011, the RO granted service connection for degenerative arthritis of the left knee with pain and limitation of motion and assigned a separate initial 10 percent disability rating, effective September 14, 2010. In April 2012, the Board remanded this matter for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In an August 2005 letter, the Veteran raised the issue of entitlement to service connection for a psychiatric disability. 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 Veteran if further action is required. REMAND Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). In this case, a July 2012 VA examination report is included in the claims file which provides information concerning the severity of the Veteran's service-connected left knee disability. The Veteran is currently incarcerated and it is unclear as to whether the July 2012 report reflects findings made during an in-person examination or findings that are only based on a review of the Veteran's claims file by a VA physician. Nevertheless, ranges of left knee motions were reported, and it was noted that there was pain associated with knee motion at 90 degrees of flexion. The Veteran, however, was able to flex the knee to 130 degrees. The examiner noted that there was additional limitation in range of motion of the knee and lower leg following repetitive motion and that there was functional loss and/or functional impairment of the knee and lower leg, including less movement than normal, incoordination, pain on movement, instability of station, and disturbance of locomotion. Also, the Veteran reported weekly flare ups of knee symptoms. Although the July 2012 examiner noted that there was additional limitation of knee motion following repetitive motion, knee flexion following repetitive motion was still reported as being to 130 degrees and there is no indication as to what point in the range of motion, if any, pain began during repetitive motion. Moreover, the examiner did not report the point, if any, at which pain, incoordination, and flare ups caused functional impairment. Thus, clarification is required. See Mitchell, 25 Vet. App. at 43-4; 38 C.F.R. §§ 4.40, 4.45, 4.59. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Additionally, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In May 2011, the Veteran submitted a signed and completed "Authorization and Consent to Release Information" form (VA Form 21-4142) for treatment provided for his left knee disability from Denver Health Medical Center. Although he submitted some additional treatment records from this facility, the most recent treatment record dated in April 2011 reflects that he was scheduled for follow-up treatment in 3 months. VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with respect to any additional treatment records from Denver Health Medical Center. Thus, a remand is also necessary to attempt to obtain any additional relevant treatment records from this facility. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall ask the Veteran to complete an authorization for VA to obtain all records of his treatment for a left knee disability from Denver Health Medical Center since April 2011. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim, and he shall be advised to submit any records in his possession. All such notification must be documented in the claims file. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected left knee disability, using the procedures for incarcerated veterans outlined in VA adjudication manual rewrite, M21-1MR, Part III.iv.3.A.11.d (Dec. 3, 2012). All indicated tests and studies shall be conducted. All efforts to schedule this examination shall be documented in the claims file. The claims file, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review. The ranges of left knee flexion and extension shall be reported in degrees. The examiner shall also answer the following question: What, if any, is the additional range-of-motion loss (in degrees) of left knee flexion and/or extension due to any weakened movement, excess fatigability, incoordination, flare ups, and/or pain? The examiner shall report if there is ankylosis of the left knee and, if so, the angle at which the knee is held. The examiner shall report whether there is subluxation or instability of the left knee, and if present, provide an opinion as to its severity. The examiner shall also report the severity of any scars associated with the service-connected left knee disability, to include whether they cause any limited motion or loss of function, scar size, and whether they are superficial, unstable, or painful on examination. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. After conducting any additional indicated development, readjudicate the issue on appeal. If any benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. Thereafter, the case shall be returned to the Board, if in order. The Veteran 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). _________________________________________________ JAMES L. MARCH 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).