Citation Nr: 1315541 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 08-31 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased disability evaluation for status post medial meniscectomy, right knee, with laxity and degenerative joint disease, currently rated as 20 percent for meniscus removal and 10 percent for arthritis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active service from November 1961 to July 1965. This appeal initially came to the Board of Veterans' Appeals (Board) from an October 2007 rating decision. In October 2011, the Board denied the Veteran's claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In November 2012, the Court vacated the Board decision and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. In April 2012, it appears the Veteran filed a claim seeking service connection for a left shoulder disability as secondary to his service connected right knee disability (though the basis of this is unclear). This issue does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 The JMR was premised on the fact that the Board had provided an inadequate discussion of whether a separate rating was warranted for right knee instability. The Board has reviewed the evidence of record, but finds that it is unclear whether the Veteran has separately compensable instability in his right knee, either currently or for any distinct period of time during the course of his appeal, and a remand is therefore necessitated. The evidence of record does show some suggestion that the Veteran has experienced right knee instability during the course of his appeal. For example, at an August 2007 VA examination, the Veteran described some giving way in his right knee. On examination it was noted that there was no subluxation, and anterior and posterior cruciate ligaments stability tests of the right knee were within normal limits, as were medial and lateral meniscus tests of the right knee. However, medial and lateral collateral ligaments stability tests of the right knee were abnormal, showing slight instability. However, it is unclear whether such instability was chronic or whether it was able to be resolved by physical therapy. For example, at a VA rehabilitation consultation in August 2009, the Veteran denied any buckling, but stated that his right knee was unstable. The medical professional noted that the Veteran had been using a medial off-loading brace, but she did not appreciate "excessive laxity" with anterior drawer testing and observed that right knee stability appeared comparable to the unaffected left knee. She then referred the Veteran to outpatient physical therapy to work on knee stabilizing exercises. Following these exercises, the Veteran's right knee instability, to the extent it existed before, appeared to resolve. For example, in a February 2011 treatment records, it was noted that the Veteran's right knee was observed to be stable, providing evidence against this claim. At a subsequent VA examination in March 2011, the Veteran again complained of giving way, but the examiner reported in the objective findings portion of the examination report that there were no signs of instability or subluxation. However, in the diagnosis section of the examination, the examiner diagnosed the Veteran with status post medial meniscectomy right knee with laxity, noting that the Veteran used a brace on ambulation for stability. It is unclear whether such finding of laxity is consistent with the determination of no instability. At his hearing, the Veteran stated that his right knee had not given out in the previous year, qualifying that he could not really move around like he used to, and adding that when he was more active, his right knee would go out quite often. As described, the Board concludes that another VA examination is necessary to assess whether the Veteran has chronic right knee instability. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from June 2011 to the present. 2. Then, schedule the Veteran for a VA examination to determine the nature and severity of his service connected right knee disability. The Veteran's claims file should be provided to the examiner, and a complete rationale should be provided for any opinion expressed. The examiner should: a) Conduct range of motion studies of the right knee (expressed in degrees), noting the exact measurements for flexion and extension. If pain on motion is observed, the examiner should comment on the extent of pain, and indicate at which point pain begins. The extent of any incoordination, weakened movement and excess fatigability (if any) on use of the right knee should be described. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely additional functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express such functional loss in terms of additional degrees of limited motion. b) Indicate the presence or absence of any lateral instability and/or recurrent subluxation in the right knee. If instability is present, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. In so doing, the examiner should specifically provide an opinion as to whether the Veteran has experienced chronic instability in his right knee for any distinct period during the course of his appeal (since June 2007), discussing the finding of slight instability at the August 2007 VA examination, the prescription of stabilizing exercises in August 2009, and the finding of no instability at the March 2011 VA examination (a review of the Court's Joint Motion may be helpful to the examiner in understanding the mandate the Board is under in this case). The examiner should also clarify whether the finding of no instability at the 2011 VA examination was consistent with the diagnosis of right knee laxity. 3. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 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). _________________________________________________ JOHN J. CROWLEY 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).