Citation Nr: 1311596 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-26 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for status post meniscectomy of the right knee, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for loss of motion of the right knee due to degenerative joint disease (DJD), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to August 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board previously adjudicated the Veteran's claim in June 2011. The Veteran's claim for a disability rating in excess of 10 percent for instability due to status post meniscectomy of the right knee and loss of motion of the right knee due to DJD was denied. The Board did grant a separate 10 percent rating for residuals of right knee meniscus surgery. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran's attorney and VA's General Counsel filed a Joint Motion requesting that the Court vacate that part of the Board's decision that denied increased ratings for the Veteran's instability due to status post meniscectomy of the right knee and loss of motion of the right knee due to DJD. The Joint Motion requested that the Court not disturb that part of the Board's decision that granted a separate 10 percent rating for residuals of right knee meniscus surgery. The Joint Motion also requested that the Court remand the case to the Board for further development and re-adjudication in accordance with the directives of the August 2012 Joint Motion. The Court granted the Joint Motion for remand in August 2012 and returned the two issues to the Board for further action consistent with the terms of the Joint Motion. The Board wrote to the Veteran in October 2012. He was advised that the case was returned to the Board by the Court. He was further advised that he had 90 days to submit additional evidence or argument in support of his claim. The Veteran did not respond to the letter; however, his representative submitted additional argument in support of the claim in March 2013. 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 As noted in the Introduction, the Board previously denied a disability rating in excess of 10 percent for instability due to status post meniscectomy of the right knee and loss of motion of the right knee due to DJD in June 2011. The Veteran appealed the denial to the Court. The Board's decision was vacated on the basis of the Court granting the referenced Joint Motion. The Joint Motion maintained that the Board relied on examinations that were not adequate for VA purposes. In particular, the Joint Motion cited to the results of range of motion testing done at examinations in December 2007 and November 2010. The contention was that the examination reports did not reflect whether the range of motion testing was done with the Veteran's right knee in a weight bearing position. It was argued that such testing was required by 38 C.F.R. § 4.59 (2012). It was further contended that that the evidence of record suggested that the Veteran had pain and decreased range of motion when in a weight bearing position and that a new examination was required. The Joint Motion also maintained that the Board provided inadequate reasons and bases for its determination that the evidence did not show the Veteran to have more than a noncompensable limited of motion of his right knee. The Joint Motion cited to evidence of record of mild-to-moderate atrophy of the right quadriceps and that, under 38 C.F.R. § 4.40, this may be an indication of functional loss. In regard to the disability rating for instability due to status post meniscectomy of the right knee the Joint Motion contended that the Board did not consider a possible staged rating in evaluating the Veteran's disability. The Joint Motion cited to evidence from 2007 that noted occasional instability and compared it the November 2010 examination where the examiner did not find evidence of instability on examination. Further, a VA treatment record from April 2010 was cited as reflecting the Veteran as describing true symptoms of instability that seemed to limit his activities and that the Veteran had functional-type instability that limited his activities of daily living. Finally, another VA treatment entry, dated in January 2011, was said to show chronic right knee instability. The conclusion was that the evidence appeared to indicate varying levels of instability from September 2007 to January 2011. On remand, the Veteran must be afforded a new examination where the examiner addresses the concerns raised in the Joint Motion in addition to providing current findings. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claim. The RO/AMC should attempt to obtain and associate with the claims folder any medical records identified by the Veteran that are not already of record. 2. Upon completion of the above development, the Veteran should be scheduled for an examination of his right knee. The claims folder must be made available to, and reviewed by the examiner, in conjunction with the examination. All necessary tests should be conducted as the examiner deems necessary. The examiner should review the results of any testing prior to completion of the report. The examiner is advised that the Board previously denied an increased rating for the Veteran's right knee disabilities in June 2011. The Veteran appealed that denial by way of a Joint Motion that was granted by the Court. In that regard, the Joint Motion found that prior examinations were not adequate as they did not reflect whether the Veteran's range of motion was tested with and without weight bearing. On this examination, the Veteran's range of motion must be tested with and without weight bearing with the results documented in the examination report. The examiner must specify how the weight impacts on his limitation of motion, particularly in terms of range of motion. The range of motion testing should be conducted, and the examiner should identify all functional losses due to pain, fatigue, incoordination, etc. Functional losses due to such symptoms should be equated to additional loss of motion (beyond the loss shown on clinical evaluation), if possible. This should be done with respect to both limitation of flexion and limitation of extension. Any other impairment associated with the right knee should also be documented such as any muscle atrophy. Additionally, any lateral instability or subluxation of the right knee should be identified and characterized as "slight," "moderate," or "severe." The Joint Motion also cited to several VA treatment records, notably in April 2010 and January 2011 that reflected instability of the right knee. The examiner should comment on whether it is possible to identify a separate period, or periods, of a level of instability over the life of the claim from October 2007 to the present. All opinions expressed by the examiner must be accompanied by a complete rationale. 3. The RO/AMC must ensure that the medical examination report and opinions comply with this remand and the questions presented in the requests. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate, the RO/AMC should re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 MARTIN 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).