Citation Nr: 1328500 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 12-19 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 20 percent for arthritis of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to February 1968. This matter is on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Notably, in cases where a VA examination has been obtained, this duty extends to ensuring that the examination is adequate to effectively adjudicate the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Veteran submitted a claim in August 2011 seeking an increased rating for his service-connected right knee disability, which is currently rated as 20 percent disabling. It has been his assertion that his right knee locks, and ice applications and elevation are often necessary to reduce swelling. He also stated in June 2012 that his knee pain is such that he can only sleep 3-4 hours in the night before he has to take additional pain medication. While the Veteran underwent a VA examination in March 2011 in order to assess the current extent of his right knee disability, it is his assertion that the examiner did not solicit any information from him regarding the pain his knee causes. After reviewing the March 2011 VA examination, the Board agrees that it is not adequate for adjudication purposes, and a new examination is necessary. Specifically, while this examination lists the range of motion of the Veteran's right knee in terms of flexion and extension, it does not indicate the amount of additional limitation that results from pain. The fact that pain was noted during flexion at an outpatient evaluation that same month would indicate that the pain he experiences does impact his range of motion. Moreover, the VA examination report does not indicate that the Veteran had the opportunity to discuss with the examiner about all of the symptoms he experiences. The Board stresses that, when considering what rating is appropriate for a joint disability as is the case here, it is essential that any examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Significantly, weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Without an appraisal of the impact of pain, the examination is insufficient for adjudication purposes. Therefore, a new VA examination is necessary. As an additional matter some clarification may be necessary regarding the diagnostic codes currently assigned for the Veteran's right knee disability. For example, his current 20 percent rating is assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257, which addresses instability of the knee. However, according to the July 2004 rating decision, the 20 percent rating was assigned based on a limitation of extension to 12 degrees, which is instead addressed by 38 C.F.R. § 4.71a, DC 5261. While the assignment of a particular diagnostic code is not a rigid procedure, see 38 C.F.R. § 4.20 (2012) (allowing for the assignment of analogous ratings), it is nevertheless important in the context of knee disabilities, as a claimant who has both arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. Therefore, on remand, the RO should reconsider which diagnostic codes are most appropriate to evaluate the Veteran's symptoms. In the alternative, the RO should consider whether a rating on an extraschedular basis is warranted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Acquire any treatment records that may be available from the VA Tennessee Valley Healthcare System, or from any other VA medical center where the Veteran has received treatment, for the period since March 2011. If the Veteran has received any private treatment related to his right knee disability, and such records are not already associated in the claims folder, they should be acquired after obtaining the Veteran's authorization. The attempts to obtain these records should be specifically documented in the claims file. If the Veteran fails to provide proper authorization or the records are unavailable, this should also be specifically noted. 2. Schedule the Veteran for a new VA examination in order to determine the current nature and severity of his service-connected right knee disability. The Veteran's claims folder should be made available to the examining physician. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should describe all symptomatology related to the Veteran's service-connected right knee disability to specifically include: * The range of motion in flexion and extension, to include the degree in motion at which pain begins; * The degree of instability (if any) in the knee; * The condition of the semilunar cartilage to include a history of any surgical repairs, if any; and * The degree of functional loss that results from any knee symptoms, to include symptoms such as locking, weakness, and knee instability. Examples of functional loss include the ability to perform "normal working movements" with strength, speed, coordination or endurance. The examiner must consider the Veteran's lay statements regarding his disability, to include how his right knee impairment affects his daily activities. All findings and comments should be set forth in a legible report. If DBQs are utilized, the RO should ensure that all appropriate DBQ forms are provided to address the relevant disorders. 3. Thereafter, readjudicate the issue remaining on appeal, and as part of this adjudication, the RO should take the appropriate action to ensure that the Veteran's knee disability is characterized under the appropriate diagnostic codes. If the RO deems appropriate, the claims file should be forwarded to the Director, Compensation and Pension Service, for consideration as to whether an increased rating is warranted on an extraschedular basis. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case (SSOC) and provided opportunity to respond. Then, return the case to the Board for further appellate consideration, as appropriate. 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). _________________________________________________ Michael J. Skaltsounis Acting 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).