Citation Nr: 1310179 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-30 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for a right knee disability, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had active service from July 1968 to March 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that denied an increase in a 20 percent rating for a right knee disability (postoperative residuals of an arthrotomy of the right knee). In March 2011, the Board remanded this appeal for further development and in September 2011, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims ("Court"). In an April 2012 Order, the Court vacated the Board's September 2011 decision and remanded the matter to the Board for development consistent with the Joint Motion for Remand. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The parties to the Joint Motion for Remand agreed that the Board's September 2011 decision did not contain adequate reasons and bases for denying an increased rating for the right knee disability, to include the possible award of a separate rating for recurrent subluxation and/or lateral instability. Specifically, the parties found that the Board did not adequately address the Veteran's lay statements or indicate why VA examination reports were more probative than the examination findings from Dr. C.V. The Veteran argues, among other things, that the Board did not explain why it found the 2011 VA examination report adequate in light of its lack of clarity regarding the presence of instability and its failure to adequately address Dr. C.V.'s findings. The Board has reviewed the evidence, and observes that in January 2007, the Veteran's private provider, Dr. C.V., said that the Veteran did not have significant subluxation or instability of the knee and that his knee gave way on occasion. The Veteran had VA examinations in March 2007 and April 2011, both conducted by the same examiner. While the examiner addressed the letter from Dr. C.V. in the April 2011 report, adequate discussion of Dr. C.V.'s findings in relation to VA examination findings was not provided. Specifically, the examiner did not indicate the significance, if any, of the Veteran's report of knee giving way or of Dr. C.V.'s finding of presumably minimal subluxation or instability of the knee. Further, both VA examination reports indicate that there is pain at the medial joint line and crepitus, but that the knee was overall stable. Unfortunately, this finding is not clear as it could suggest some instability when considering pain, crepitus, and other symptomatology or it could simply indicate stable knee. Consequently, the Board finds that a remand is warranted to schedule a VA examination to determine the current severity of the right knee disability, to address the Veteran's contentions of the knee giving way, to obtain an opinion on the possibility of a relationship between the knee giving way and recurrent subluxation and lateral instability; and to determine whether any factors, such as crepitus or pain, affect knee stability. 38 C.F.R. §§ 3.159, 3.327(a) (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a different examiner to determine the severity of all disability due to his service-connected right knee disorder. The claims folder and copies of pertinent Virtual VA records must be provided to and reviewed by the examiner in conjunction with the examination. The examiner must indicate review of these items in the examination report. All indicated tests should be conducted, including x-ray, and all symptoms associated with the Veteran's service-connected right knee disability should be described in detail. Specifically, the examiner should conduct a thorough orthopedic examination of the Veteran's right knee disability and provide a diagnosis of any pathology found. In examining the right knee disability, the examiner should document any limitation of motion (in degrees) of the Veteran's right knee, to include providing the point at which painful motion begins. The examiner should also indicate whether there is any guarding on motion and the degrees at which the guarding starts. The examiner should further comment as to whether (and if so, to what extent, (i.e. slight, moderate, or severe)) the knee disability includes recurrent subluxation or lateral instability. Findings must be clearly articulated and include a discussion of Dr. C.V.'s findings and the Veteran's reports of his knee giving way. The examiner is asked to explain the relationship, if any, between complaints of knee giving way and lateral instability and/or recurrent subluxation. The examiner should indicate whether pain or weakness significantly limits functional ability during flare-ups or when the right knee is used repeatedly over a period of time. The examiner should determine whether the joint exhibits weakened movement, excess fatigability or incoordination; if feasible, these determinations should be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. If it is not feasible to express any functional impairment caused by pain, weakened movement, excess fatigability or incoordination, found in terms of additional range-of motion loss, the examiner should so state. 2. Thereafter, review the Veteran's claim for entitlement to an increase in a 20 rating for a right knee disability, to include contemplation of whether a separate rating is in order. If the claim is denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. 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 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).