Citation Nr: 1321301 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 07-18 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an evaluation in excess of 30 percent for right knee status-post total joint replacement as of May 1, 2010. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran has verified active military service from February 1973 to May 1982, and his DD214 for this period of service shows he had thirteen years, two months, twenty-five days of prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2012 this matter was last before the Board, at which time it was remanded for further development. At that time, the Board also remanded a claim of entitlement to a total disability evaluation based upon individual unemployability (TDIU). In a March 2013 rating action, the Appeals Management Center (AMC) granted this claim. Accordingly, it is no longer before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993) The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 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 When this matter was last before the Board, the Board adjudicated the portion of the claim for evaluation of the right knee disability from the date of claim for increase to March 2, 2009. From March 3, 2009, through April 30, 2010, a temporary total evaluation was awarded pursuant to 38 U.S.C.A. §38 C.F.R. § 4.71a, Diagnostic Code 5055 due to the Veteran's right knee total joint replacement. Accordingly, this period is not involved in the present appeal and the Board is tasked with adjudicating the proper disability evaluation from May 1, 2010, and on. In February 2013, and in accordance with the Boards' remand directives, the Veteran was afforded a VA examination. The examination report notes that the Veteran's claims file was reviewed. At the time of the examination, the Veteran complained of right knee and leg pain, ranging from 3/10 to 8-10/10 in severity. He described the pain as aching, sharp and sore and that it was daily in frequency. The Veteran reported flare-ups and that such flare-ups were exacerbated by walking greater than 100 to 150 feet, standing greater than 10 minutes and pushing and pulling. He was unable to squat or knee, lift greater than 15-20 pounds, sit greater than 15 to 20 minutes, drive greater than 15-20 minutes, climb a latter, use foot or hand controls. He avoided stairs and inclines/declines. During flare-ups the Veteran indicated an overall loss of normal function by 75 to 80 percent. He described flare-ups on a daily basis, secondary to activities of daily living, lasting about 2 to 24 hours, relieved by ceasing aggravating activity, ice, use of a recliner with knee elevated, non-steroidal anti-inflammatory medications, and analgesic non-narcotic medication. Examination showed flexion was to 75 degrees, with pain noted at 65 degrees. Extension was full to zero degrees. The Veteran was able to perform repetitive use testing with 3 repetitions. Following these repetitions, flexion was to 75 degrees and extension was to zero degrees. The examiner noted that the Veteran did have additional limitation of motion following repetitive use testing, but did not quantify any additional limitation of motion. 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 and additional limitation of function following repetitive use testing, 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. In addition, the Veteran submitted VA Form 21-4142s for Dr. Huddleston and Dr. Williams, which were apparently not associated with the claims folder until after the supplemental statement of the case issued in March 2013. On remand, the Appeals Management Center should attempt to obtain the identified records. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain treatment records from Dr. Huddleston and Dr. Williams, pursuant to the January 2013 VA Form 21-4142s. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the extent and severity of his service-connected disability of the right knee, status-post total joint replacement. All indicated studies, including 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. 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 right knee status-post total knee replacement is manifested by chronic residuals consisting of severe painful motion or weakness in the right lower extremity. The examiner should also indicate whether the Veteran's service-connected status-post total right knee replacement 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. Finally, as the February 2013 examiner provided information concerning a meniscal tear, the examiner should indicate whether the meniscal tear is a manifestation of the status-post total knee replacement. 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 or 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). _________________________________________________ S. S. TOTH 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).