Citation Nr: 1313347 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 08-28 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected right patellofemoral degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active military service from November 1968 to November 1971, and from May1973 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Indianapolis, Indiana. In March 2009, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is in the record. In December 2011, the Board issued a decision which, in pertinent part, denied the issue on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in August 2012, the Court granted a Joint Motion for Remand and vacated that part of the Board's decision for compliance with the instructions in the Joint Motion. The Board notes that two additional issues were before the Board in December 2011: an initial evaluation in excess of 10 percent for a left knee disability, and an increased rating for a right shoulder disability, evaluated at 10 percent from October 4, 2006 through April 14, 2009, and at 20 percent after April 15, 2009. Those issues were also appealed to the Court, but were withdrawn upon the Court's Order remanding the issue of a higher evaluation for the right knee disability to the Board. Accordingly, the left knee and right shoulder issues are no longer in appellate status before the Board. The Board has reviewed both the Veteran's physical claims files and his Virtual VA file so as to insure a total review of the evidence. 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 As noted, the Court in August 2012 granted the Joint Motion for Remand directing the Board to comply with the instructions in the motion. In a VA examination that occurred in May 2007, the examination of the right knee revealed that the medial collateral ligament had a 1st degree laxity to it. There were no reports of instability from the Veteran. At the DRO hearing in March 2009, the Veteran reported instability when making a sharp turn or different movement. A second VA examination occurred in April 2009, where the Veteran reported giving way, instability, pain, stiffness, weakness of the knee, and decreased speed of joint motion. He reported daily or more often locking episodes. He denied incoordination, subluxation, or effusion. The report indicates the examiner determined that there was no instability upon clinical examination. The Court Order and Joint Motion noted the second VA examiner did not explain the discrepancy between the finding of no instability and the Veteran's history and report of instability as well as the earlier finding in May 2007 that the medial collateral ligament has a 1st degree laxity. Furthermore, the Court noted the Board could not offer its own explanation without citing to independent medical evidence to support the explanation. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). The Board has determined that a new VA examination should be provided and the examiner should reconcile the findings and history of the prior examinations to the extent possible. The examiner should also explain the clinical significance of the earlier finding of first degree laxity of the medial collateral ligament. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA orthopedic examination to determine the level of right knee impairment. The claims folder must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. A complete rationale for all opinions must be provided. a). All ranges of motion of the right knee should be tested, using a goniometer when necessary, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's right knee disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's knee disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. b). Identify subluxation or lateral instability of either knee and, if so, its severity. The examiner must explain how subluxation and laxity and the results was tested or determined. The examiner is asked to explain the definition of and clinical significance of the finding in May 2007 that the Veteran had first degree laxity of the medial collateral ligament. The examiner is also asked to reconcile, if feasible, the May 2007 finding of first degree laxity of the medial collateral ligament, the Veteran's subsequent history of instability, and the finding of no instability in the second VA examination in April 2009. All findings from the current examination should also be reconciled with prior findings and history if feasible. 2. After the development requested is completed, readjudicate the claim. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. 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 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). _________________________________________________ U. R. POWELL 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).