Citation Nr: 1324804 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 07-27 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a rating in excess of 30 percent for service-connected right knee disorder, status post total knee replacement, for the period after June 30, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The appellant, who is the Veteran, served on active duty from June 1980 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above which continued a 10 percent rating for service-connected right knee disorder. In June 2009, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is associated with the claims file. In September 2009, the Board remanded the Veteran's increased rating claim for additional development. Thereafter, in July 2010, the RO awarded a temporary total disability rating for total right knee replacement surgery necessitating convalescence under 38 C.F.R. § 4.30, effective from May 26, 2010, and assigned a 100 percent schedular rating for 13 months following the knee replacement, effective from July 10, 2010. A 30 percent rating was assigned for the right knee disability, effective from July 1, 2011. Subsequently, in March 2011, the Board rendered a decision addressing the increased rating claim. For the appeal period prior to July 1, 2011(excluding those periods when the Veteran was in receipt of a temporary, 100 percent rating), the Board denied entitlement to a disability rating in excess of 10 percent for right knee limitation of motion, entitlement to a higher or separate rating for the right knee disorder, entitlement to a separate, compensable rating for right knee scar, and entitlement to extra-schedular consideration, but the Board granted a separate, 20 percent rating for right knee instability for the period prior to July 1, 2011. For the period after June 30, 2011, the Board remanded the issue of entitlement to a rating in excess of 30 percent for additional development, including specifically obtaining VA treatment records dated after May 26, 2010, and affording the Veteran a VA examination. For reasons explained below, the Board finds that the directives of the March 2011 remand were not substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2011, the Board referred the issue of entitlement to service connection for a right knee neurological disability, to include as secondary to his service-connected right knee disorder. Review of the record reveals that the agency of original jurisdiction has not taken any action to adjudicate the Veteran's right knee neurological disability claim. As such, the Board does not have jurisdiction over this issue, and it is, again, referred to the AOJ for appropriate action. For reasons explained below, 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 on his part. REMAND As noted in the Introduction, the Veteran was awarded a temporary total rating for his right knee disorder, effective May 26, 20109, the date of his total right knee replacement surgery, after which a 30 percent rating was awarded, effective July 1, 2010. See 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055. In March 2011, the Board remanded the issue of entitlement to a disability rating in excess of 30 percent for service-connected right knee disorder for the period after June 30, 2011 for additional development. The Board noted that the temporary total rating was due to expire on June 30, 2011, and that additional evidence was needed to determine whether a rating in excess of 30 percent is warranted after that date. The Board requested a VA examination be conducted, as last VA examination of record was in March 2010, and that VA treatment records dated after May 26, 2010 be obtained, as the Veteran was receiving frequent VA treatment for his right knee after the total knee replacement. With respect to the VA examination, the Board requested, inter alia, that the VA examiner provide specific findings/opinions regarding the following: (1) whether the Veteran could experience instability or subluxation of the knee in the absence of objective medical evidence of instability and/or subluxation and, if so, state the level of severity; (2) whether pain could significantly limit functional ability during flare-ups or repeated use and, if feasible, portray such functional impairment in terms of additional range of motion loss; (3) whether there is a right knee scar and, if so, specify the size, whether it causes limitation of motion, is unstable or painful, or limits function; and (4) whether the right knee disorder impacts his ability to obtain and maintain employment. Review of the record reveals the Veteran was afforded a VA examination on May 15, 2011, before his temporary total rating had expired. The examination report reflects that the VA examiner reviewed the Veteran's claims file, interviewed the Veteran, and conducted a physical examination. However, the Board finds that the May 2011 VA examiner did not adequately address the specific questions posed above. Regarding instability, the examiner noted there were no symptoms of instability or subluxation. However, objective examination revealed evidence of laxity in the right cruciate and collateral ligaments, which the examiner stated was expected after total knee replacement. The examiner did not, however, reconcile his report of laxity of the right knee joints with his finding of no symptoms of instability or subluxation; nor did the examiner address whether the Veteran could experience instability or subluxation in the absence of objective medical evidence of such, as requested. Regarding flare-ups, the May 2011 VA examiner noted the Veteran reported having flare-ups on a daily basis and that pain is his greatest functional impairment. The examiner did not state whether pain could significantly limit functional ability during flare-ups or portray such functional impairment in terms of additional range of motion loss, as requested. Regarding a right knee scar, the May 2011 VA examiner noted there was 21 centimeter (cm) long scar that was well-healed. The examiner failed to address whether the scar causes limitation of motion, is unstable or painful, or limits function, as requested. The Court has held that a remand by the Court or Board confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders, which is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Indeed, an appellant has the right to substantial, but not strict, compliance with that order. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The ultimate goal of the March 2011 remand was to conduct evidentiary development to determine the level of severity of the right knee disorder after the expiration of the temporary total rating on June 30, 2011. However, based on the foregoing, the Board finds that the directives of the March 2011 remand have not been substantially complied with, as the Veteran was not afforded an adequate VA examination. Indeed, while the Veteran was afforded a VA examination in May 2011, the examiner did not provide all information and evidence needed to properly determine whether a rating higher than 30 percent is warranted for the right knee after June 30, 2011, including an adequate response regarding instability, functional impairment during flare-ups, or as it relates to the right knee scar. In addition to the deficiencies identified above, the VA examiner noted that the Veteran's right knee disorder was manifested by 15 degree flexion contracture but did not discuss how this impacted the Veteran. If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the appellant why one will not or cannot be provided). The Board notes there is no lay or objective medical evidence of record that addresses the severity of the right knee disorder after June 30, 2011. Review of the record reveals that the RO obtained (and associated with the paper claims file) VA treatment records dated from May 26, 2010 to March 18, 2011. However, the evidentiary record, including the paper and paperless, electronic claims file (Virtual VA), does not contain any VA treatment records dated after March 18, 2011. In sum, the Board finds that the directives of the March 2011 remand have not been substantially complied with and, as such, the evidentiary record does not contain adequate information or evidence to properly determine whether a rating in excess of 30 percent for service-connected right knee disorder after June 30, 2011 is warranted. Accordingly, while the Board regrets any additional delay, the Board finds another remand is needed in this case. On remand, the RO/AMC will be requested to (1) obtain all outstanding VA treatment records dated from March 28, 2011 to the present concerning the right knee and (2) schedule the Veteran for an adequate VA examination to evaluate the severity of his right knee disorder since June 30, 2011. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the evidentiary record any outstanding VA treatment records dated after March 18, 2011 concerning the right knee. All reasonable attempts should be made to obtain these records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA orthopedic examination to determine the severity of his service-connected right knee disorder after June 30, 2011. Such tests as the examining physician deems necessary should be performed. All findings should be reported in detail. The examiner should specifically address the following: (a) Report the Veteran's range of motion of the knees in degrees. The examiner should state if the Veteran has ankylosis of the right knee and, if so, identify to what degree and in what plane of excursion the knee is fixed. The examiner should describe the impact of any flexion contracture found to include the 15 degree flexion contracture found on the May 2011 VA examination. (b) State whether there is objective evidence of lateral instability or subluxation of the right knee and if so, the degree of such instability and/or subluxation should be discussed. The examiner should note whether there is lay evidence of instability or subluxation, including reports of giving way or the use of a cane (or other assistive devices) for instability or twisting of the knee, since June 30, 2011. The examiner should reconcile any subjective symptoms of instability/subluxation with any objective evidence (or lack thereof) of instability/subluxation. The examiner should address whether the Veteran could experience instability or subluxation of the knee even in the absence of objective medical evidence showing instability and/or subluxation, and if so, the level of severity should be addressed. (c) State whether the right knee exhibits weakened movement, excess fatigability, or incoordination attributable to the service-connected right knee disability and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. (d) Provide an opinion as to whether pain could significantly limit functional ability during flare-ups and/or when the right knee is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. (e) State whether there is evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity. (f) Note whether the Veteran's right knee disorder is productive of scarring and specify the size of any scar, whether it causes limitation of motion, is unstable or painful, and whether it limits function. If limitation of function is shown, state what motions or functions are limited and to what extent. (g) State whether there is any neurologic impairment associated with the right knee disorder and, if so, provide a diagnosis of such and identify the manifestations of such. (h) State if/how the Veteran's right knee disorder impacts his ability to obtain and maintain employment or conduct activities of daily living. See 38 C.F.R. § 4.10. 3. Then, after completing any further development as may be indicated by any information or evidence received, readjudicate the Veteran's increased rating claim for the period after June 30, 2011. The Veteran's claim should be readjudicated based on the entirety of the evidence and with consideration of all relevant rating codes, to include but not limited to, Diagnostic Code 5055 for knee replacement. If any aspect of the Veteran's claim remains denied, he and his representative should be issued a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. An appropriate period of time should be allowed for response. The Veteran is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 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). _________________________________________________ K. OSBORNE 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).