Citation Nr: 1312406 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 05-40 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for chondromalacia of the right knee, currently assigned a 20 percent disability evaluation. 2. Entitlement to an increased evaluation for chondromalacia of the left knee, currently assigned a 20 percent disability evaluation. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefits sought on appeal. The Veteran appealed that decision to the Board, and the case was referred to the Board for appellate review. In August 2008, the Board issued a decision denying entitlement to an increased evaluation for chondromalacia of the right and left knees. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a memorandum decision dated in July 2010, the Court vacated the Board's August 2008 decision with respect those issues and remanded the case to the Board. When the case was before the Board in February 2011, it was remanded for additional development. In December 2012, the Veteran's attorney requested a copy of the April 2011 VA examination report which was provided to her by the Board in February 2013. In February 2013, the Board also granted the attorney a 30-day extension of time to submit additional argument or evidence. Additional argument was received in March 2013, and the case is now ready for disposition. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Reason for Remand: To afford the Veteran a new VA examination If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Pursuant to the February 2011 Board remand, the Veteran underwent a VA examination in April 2011. The report of that examination reflects that the Veteran endorsed the following right knee symptoms: pain, giving way, and stiffness. The Veteran endorsed the following left knee symptoms: pain and stiffness. The summary of general joint findings for the right knee reflects that there was no crepitation, mass behind the knee, clicks or snaps, grinding, instability, patellar abnormality, meniscus abnormality, abnormal tendons or bursae, or bumps consistent with Osgood-Schlatter's disease. The only objective finding for the right knee was noted to be guarding of movement. The report does not contain a list of objective findings for the left knee. The examiner noted that range of motion of the left knee was from zero (full extension) to 90 degrees of flexion. Range of motion of the right knee was from zero to 70 degrees of flexion. Objective pain with active motion was found bilaterally. No additional limitation was found with repetitive motion. The examiner noted that the Veteran is able to stand for 15 to 30 minutes and walk more than a quarter of a mile but less than a mile. The examiner also noted that the Veteran always uses a knee brace. X-ray studies revealed normal appearance of both knee joints when compared to July 2010 radiographs. It was noted that the Veteran reported having lost five weeks of work in the past 12-month period due to diabetes, severe knee pain, and hypertension. The examiner noted that the Veteran's bilateral knee strain causes significant effects on the Veteran's employment insofar as it causes decreased mobility, pain, and increased tardiness. The Veteran's knee problems mildly affect chores, shopping, exercise, recreation, traveling, and driving. There is no effect on feeding, bathing, dressing, toileting, and grooming. There is a moderate effect on sports. Finally, the Veteran's knee problems affect her sleep and long periods of driving. The Board finds that the April 2011 VA examination report is inadequate. Initially, the Board notes that the subjective list of symptomatology from which the Veteran could endorse or deny symptoms is different for the right and left knees. The list for the right knee reflects that instability and incoordination were not offered as choices to the Veteran. Moreover, there is no list of objective findings whatsoever for the left knee. Only the objective right knee symptoms appear to have been recorded. As noted in the February 2011 remand about the February 2005 VA examiner, the April 2011 VA examiner mentioned that the Veteran wears a knee brace, but noted that there was no instability of the knees. There is no explanation or reconciliation of these conflicting facts. The April 2011 VA examiner did not state which test(s) was/were conducted in order to determine whether there was any instability, and the Veteran was not offered a choice of whether to endorse a symptom of instability for the right knee. The examiner also did not state whether there was any objective evidence of subluxation of either knee. Finally, there is no information in the April 2011 VA examination report regarding whether there is any objective evidence of fatigability, incoordination, and weakness, including whether any additional disability is due to these factors. The February 2011 remand requested that the examiner provide this information. For these reasons, the April 2011 VA examination is inadequate and another VA examination should be conducted. Therefore, the AOJ did not accomplish the objectives set forth in the February 2011 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). Because the Board has determined that a medical examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with a claim for increase, the claim shall be denied. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the Veteran's VA treatment records dating from February 2005 to the present. 2. The Veteran must be afforded a VA examination to determine the nature and extent of her service-connected chondromalacia of the right and left knees. The claims file must be made available to the examiner, and the examiner must specify in the examination report that the claims file has been reviewed. All necessary and appropriate tests, to include X-rays studies of the knees if indicated, must be performed and their results documented. The examiner must fully describe all manifestations of the Veteran's service-connected chondromalacia of the knees. Range of motion testing of the knees, expressed in degrees, with standard ranges provided for comparison purposes, must be accomplished expressed in degrees by use of a goniometer, and all clinical findings must be reported in detail and correlated to a specific diagnosis. If painful motion is observed, the examiner must state the point in degrees at which motion is limited by pain. The same range of motion studies must then be repeated after at least 3 repetitions. The examiner must also discuss whether there are additional limits on functional ability on repeated use or during flare-ups, and provide an assessment of any functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner must state whether there is any functional loss due to pain, weakened movement, excess fatigability, or incoordination causing additional disability beyond that reflected on range of motion measurements, and if so, the additional degree of impairment. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement of the right and/or left knee, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected chondromalacia of the right and left knees, the presence or absence of changes in condition of the skin indicative of disuse due to the service-connected disorder, and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected chondromalacia of the knees. The examiner must specifically state whether the Veteran's chondromalacia of the right and left knees are manifested by recurrent subluxation or lateral instability and if so, the severity of such (slight, moderate, severe); dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; genu recurvatum; and/or ankylosis. The examiner must also specifically address the Veteran's use of knee braces. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until he is notified. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).