Citation Nr: 1320366 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-18 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease (DJD) of the right knee, status-post right anterior cruciate ligament repair and meniscus debridement. ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1997 to December 2006. This matter comes to the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Gretna, Louisiana, in which the RO granted entitlement to service connection for DJD of the right knee, status-post right anterior cruciate ligament repair and meniscus debridement. Jurisdiction over the matter was later transferred to the Houston, Texas RO. A Travel Board hearing was scheduled for May 20, 2013, and the Veteran failed to appear. The Veteran has not filed a motion for a new hearing. Accordingly, the case will be processed as though the request for a hearing has been withdrawn. See 38 C.F.R. § 20.704(d) (2012). The issue of entitlement to service connection for residual scarring status-post right anterior cruciate ligament repair and meniscus debridement has been raised by the record, but has not 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 appellant if further action is required. REMAND The Veteran contends that his service-connected DJD of the right knee, status-post right anterior cruciate ligament repair and meniscus debridement warrants a rating in excess of 10 percent. He was last afforded a VA examination in August 2010. A review of the examination report documents a history of reported occasional flare-ups, yet the examination report does not address the effect that the reported flare-ups had on limitation of motion, if any. The United States Court of Appeals for Veteran's Claims (Court) has held that for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See DeLuca v. Brown, 8 Vet. App. 202 (1995). A review of the August 2010 VA examination fails to show that the DeLuca factors were addressed; the examination report notes complaints of flare-ups, but does not address or quantify any possible further limitation of motion caused thereby. When a medical examination report "does not contain sufficient detail," the adjudicator is required to return the report as inadequate for evaluation purposes. Id. at 206; see also 38 C.F.R. § 4.2 (2012). Thus, the Board must remand this case as the most recent examination report does not contain the necessary DeLuca findings. It is unclear to the Board whether the Veteran receives treatment from VA or private facilities for his service-connected right knee disability. Therefore, on remand, attempts should be made to determine whether there are outstanding treatment records, and to obtain the same. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to provide names and locations of places from which he receives treatment for his service-connected right knee disability. Obtain any outstanding treatment records and associate them with the claims file. 2. After the above development has been conducted to the extent possible, schedule the Veteran for an appropriate VA examination to determine the extent and severity of his service-connected DJD of the right knee, status-post right anterior cruciate ligament repair and meniscus debridement. All indicated studies, including X-rays and range of motion studies in degrees, should be conducted, and all findings should be reported in detail. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. The examiner is requested to identify any objective evidence of pain or functional loss due to pain. The specific functional impairment due to pain should be identified, and the examiner should be requested to assess the extent of any pain. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the physician should so state and explain why. The examiner should also indicate whether the Veteran's service-connected right knee disability has manifested by lateral instability and/or subluxation. If so, the examiner should comment on the severity of such instability and/or subluxation including the duration and frequency of such manifestations. A complete explanation for any opinion expressed should be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After the development requested above has been completed to the extent possible, review the record and readjudicate the claim on appeal. If the maximum benefit sought on appeal remains denied, the Veteran should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned 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). _________________________________________________ BETHANY L. BUCK 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).