Citation Nr: 1314715	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  05-28 790A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to a rating higher than 30 percent for residuals of a left distal femur fracture with left knee disability.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel





INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 1977 to July 1980.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2005 of a Department of Veterans Affairs (VA) Regional Office (RO).

In June 2007, the Veteran appeared at a hearing before a Decision Review Officer.  A transcript of the hearing is in the Veteran's file. 

In June 2010 and July 2012, the Board remanded the claim for additional development.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directive.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

In April 2013, the Veteran's representative waived initial consideration of additional evidence by the RO.  38 C.F.R. § 20.1304(c).

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  


REMAND 

The residuals of a left distal femur fracture with left knee disability are rated 30 percent under Diagnostic Code 5256 for favorable angle ankylosis with full extension and flexion between 0 to 10 degrees.  The criterion for next higher rating, 40 percent, is ankylosis in flexion between 10 degrees and 20 degrees.   


The criterion for the next higher rating, 50 percent, is ankylosis in flexion between 20 degrees and 45 degrees. The criterion for the next higher rating, 60 percent, is extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more.  

Service department records show that in April 2012 active range of motion of the left knee was 45 to 55 degrees.  It was noted that the knee was essentially fused. 

On VA examination in July 2012, the pertinent finding was ankylosis with extension to 37 degrees and flexion to 42 degrees.  

In February 2013, a private physician reported that flexion ended at 45 degrees and extension ended at 45 degrees or greater. 

As it is unclear how the findings correlate to the criteria for a higher rating for ankylosis of the knee under Diagnostic Code 5256, a reexamination to verify the current severity of the disability is needed.  38 C.F.R. § 3.327. 

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination to determine: 

a).  The angle of ankylosis in flexion of the left knee, using goniometer, and whether the angle of ankylosis in flexion correlates to either: 

i).  Ankylosis in flexion between l0 degrees and 20 degrees; 

ii).  Ankylosis in flexion between 20 degrees and 45 degrees; or 

iii).  Extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more.





b).  If ankylosis is not shown, the VA examiner is asked to describe:

i).  Range of flexion and extension in degrees, using a goniometer, and any additional limitation of flexion or extension, considering functional loss due to pain, weakness, fatigability, painful motion, including during flare- ups or with repetitive use, if feasible, in terms of degrees of additional limitation of flexion or extension; and, 

ii).  Any ligament instability.   

The VA examiner is asked to note in the report that a goniometer was used to accurately measure ankylosis or the limits of flexion and extension. 

The Veteran's file must be provided to the VA examiner for review. 

2.  After the development is completed, adjudicate the claim.  If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to 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).






The claim 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court.  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).









Department of Veterans Affairs