Citation Nr: 1314696 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 05-00 040A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent for patellar tendonitis of the left knee (left knee disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1992 to May 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision, by the Roanoke, Virginia, Regional Office (RO), which granted service connection for patellar tendonitis, left knee, evaluated as 0 percent disabling. Subsequently, in a June 2007 decision, the RO increased the evaluation for patellar tendonitis in the left knee from 0 percent to 10 percent, effective July 23, 2003. As this increased rating does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn his claim, this issue remains pending. See AB v. Brown, 6 Vet. App. 35 (1993). In July 2008, the Veteran and his wife appeared and offered testimony at a hearing before the undersigned Acting Veterans Law Judge, in Washington, D.C. A transcript of that hearing is of record. In August 2011, the Board most recently remanded this issue to the RO for further development. The case has since been returned to the Board for adjudication. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that the Board has a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In August 2011, the Board remanded the Veteran's claim for further development-including a thorough VA examination. The Board specifically requested that the VA examiner address any functional limitations associated with the Veteran's left knee disability. The Veteran was afforded a VA examination in August 2011, and although the examiner was quite thorough in his discussion about the current severity of the left knee disability, he did not discuss the degree of flexion at which the Veteran experiences left knee pain. The examiner noted that the Veteran "grimaces" during acute flexion of the left knee joint, but he never indicated at what degree the Veteran felt painful motion. There is some notation that when the Veteran crossed his left leg over his right, his left knee flexion was limited to 100 degrees. Later, the examiner indicated that there was no further loss of range of motion due to pain following repetitions. Finally, the examiner indicated that he could not opine as to any further loss of motion in the Veteran's left knee during a flare-up without resort to speculation. He did not, however, provide a reason for his inability to provide this opinion. It important to note here that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the August 2011 examination, there is evidence of painful motion in the left knee joint, but the examiner did not indicate at which degree the Veteran experiences this pain (objectively manifested by grimacing during acute flexion). Moreover, the Board finds that pursuant to the guidance in Jones v. Shinseki, 23 Vet. App. 382 (2010) regarding speculative opinions, the Board cannot rely on the August 2011 examination findings to the extent that the examiner could not provide an opinion as to any additional limitation of motion in the left knee joint during a period of flare-up. In this regard, the Board notes that the examiner did not provide a detailed reason for his inability to provide this opinion. As the Board finds the August 2011 VA examination to be inadequate, the Veteran should be afforded a new VA examination regarding his left knee disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for another VA orthopedic examination in order to ascertain the severity of his left knee disorder. The claims folder should be made available to the examiner in conjunction with the examination. All necessary tests should be performed. The examiner should specifically indicate the ranges of motion of the Veteran's left knee-including the ranges of motion wherein the Veteran first feels painful motion. The examiner should also note the presence and degree of any lateral instability or subluxation upon physical examination-slight, moderate, or severe. The examiner should comment on any functional impairment due to pain, weakness, fatigability, incoordination, etc., and the pathology associated with functional impairment should be described. With respect to the functional losses associated with such symptoms, the examiner should comment on whether pain is visibly manifested on movement of the joint (and the degree at which he experiences it), the presence and degree of, or absence of, muscle atrophy attributable to the service-connected disability and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain, weakness, etc., attributable to service- connected disability. All functional losses should be equated to additional loss of motion (beyond that shown clinically). Such an assessment regarding functional loss should be made with respect to both flexion and extension. A complete rationale for all opinions must be provided. 2. The RO should ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the AOJ should readjudicate the Veteran's claim for a higher evaluation for the left knee on the basis of all evidence of record and all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decision reached. Thereafter, the Veteran and his representative should be given the opportunity to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters 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). ________________________________________________ L.J. BAKKE Acting 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).