Citation Nr: 1318232 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-18 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a rating higher than 10 percent for degenerative arthritis of the right knee. REPRESENTATION Appellant represented by: Teresa M. Meagher, Attorney ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to July 1983. He appealed to the Board of Veterans' Appeals (Board/BVA) from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). An additional claim of entitlement to service connection for a left knee disorder, including as secondary to the already service-connected right knee disability, has been raised by the record. See a March 2011 private medical statement. But as this additional claim has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ), the Board has no jurisdiction over it, at least presently, so is referring this claim to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). And as for the claim that is currently before the Board, for a higher rating for the right knee disability, this claim requires further development before being decided on appeal, so the Board is remanding this claim to the RO. REMAND Since the issuance of the most recent supplemental statement of the case (SSOC) in February 2011, the Veteran has submitted additional private medical records concerning his service-connected right knee disability. He has requested that the RO, rather than the Board, initially consider this additional evidence. See his April 2011 statement. He therefore has not waived this right. 38 C.F.R. § 20.1304 (2012). As such, it would be potentially prejudicial to him for the Board to consider this additional evidence in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). An additional VA compensation examination also is needed to reassess the severity of his service-connected right knee disability. A preliminary review of the evidentiary record reveals he was last afforded a VA compensation examination for this disability in April 2010. Range-of-motion testing during that evaluation revealed extension to 0 degrees and flexion to 140 degrees with stable ligaments and no tenderness. So, at least at the time of that evaluation, he had normal range of motion in this knee. See 38 C.F.R. § 4.71, Plate II. In a private medical record since dated in March 2011, however, the commenting private physician indicated the Veteran's right knee extension was still to 0 degrees, so still completely normal, but that his flexion was limited to 115 to 120 degrees, so now less than normal, albeit still far exceeding the amount of restricted motion needed to receive even the most minimum 0 percent (noncompensable) rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5261, much less a rating higher than 10 percent. It appears, then, the RO assigned the minimum 10 percent rating because the Veteran has degenerative arthritis in this knee, which entitles him to this minimum compensable rating even absent a compensable degree of limited motion. This is because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion or, as here, a noncompensable level of limited motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). When evaluating musculoskeletal disabilities that are rated at least partly based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Indeed, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The rule against pyramiding (see 38 C.F.R. § 4.14) does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body such as excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. This private physician also noted however the Veteran has weakness, problems with his gait, and crepitance in his right knee. See the March 2011 private medical report. This new evidence seems to suggest a worsening of the Veteran's service-connected right knee disability since his VA examination. See Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of the disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). As such, the Board finds that he needs to be reexamined to reassess the severity of this disability. 38 C.F.R. § 3.327(a). See also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (wherein the Court held that, when a Veteran claims that a disability is worse than when originally rated or last examined by VA, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (VA must consider the history of the disability). See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Schedule a VA compensation examination to reassess the severity of the Veteran's service-connected right knee disability. All indicated diagnostic testing and evaluation should be performed. All pertinent symptoms and findings should be reported in detail, including the results of range-of-motion (ROM) testing. When determining range of motion, it is especially important the designated examiner indicate whether there are objective clinical indications of pain or painful motion (so specify the point at which pain sets in), and whether there is weakness, premature or excess fatigability, and incoordination, and if there is, whether the Veteran has additional functional impairment in his knees as a consequence - including additional limitation of motion above and beyond that shown on examination, such as during prolonged, repetitive use of this knee or when his symptoms are most problematic ("flare ups"). And, if possible, the examiner should try and quantify the amount of this additional impairment, such as by specifying the additional restriction in range of motion. Medical opinion is also needed concerning whether there are objective clinical indications of instability or laxity (and, if there are, whether the instability and/or laxity is slight, moderate or severe), and whether there are objective clinical indications of effusion into the joint and locking. To facilitate making these important determinations, it is essential the examiner reviews the claims file, including a complete copy of this remand, for the pertinent medical and other history. The examination report should reflect that such review was accomplished. *The Veteran is hereby advised that his failure to report for this scheduled VA examination, without good cause, will have detrimental consequences on this pending claim, as it will require denying this claim as a matter of law. See the mandatory "shall" language used in 38 C.F.R. § 3.655 (2012) since this is not an original compensation claim, rather a claim for an increase in the already existing rating for a disability that was determined service connected in years past. 2. Then readjudicate this claim in light of this and all other additional evidence, including that submitted in April 2011, so since the February 2011 SSOC. If this claim is not granted to the Veteran's satisfaction, send him and his attorney another SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).