Citation Nr: 1333065 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 00-09 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a rating in excess of 10 percent for right knee arthritis. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESSES AT HEARING ON APPEAL Appellant, Partner, and Mother ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a hearing before a Decision Review Officer at the RO and at a hearing before the Board in April 2006. A March 2002 Board decision granted an increased rating for the Veteran's right knee disability and found that the right knee disability was to be rated 10 percent for instability and 10 percent for arthritis with limitation of motion. The Veteran appealed the March 2002 decision to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion for Remand, in a March 2003 Order, the Court vacated the decision denying an increased rating and remanded the claim to the Board for readjudication in accordance with the Joint Motion. In October 2003 and June 2005, the Board remanded the claim for additional development. In a June 2006 decision, the Board denied the Veteran's claim for increased rating for the right knee disability. The Veteran appealed that decision to the Court. Pursuant to a Joint Motion to Vacate and Remand, the Court, in an April 2007 Order, vacated the June 2006 decision and remanded the appeal to the Board. In January 2009, the Board remanded the claim for additional development. In a June 2010 decision, the Board denied the Veteran's claim for increased rating, greater than 10 percent, for right knee arthritis and assigned a 20 percent rating for right knee instability. The Veteran appealed that decision to the Court. Pursuant to a Joint Motion to Vacate and Remand, the Court, in a February 2011 Order, vacated the June 2010 decision to the extent that it denied a rating greater than 10 percent for right knee arthritis and remanded the appeal to the Board. In July 2011 and in October 2012, the Board remanded the claim for additional development. The appeal is REMANDED to the RO. REMAND In a June 2013 letter, the Veteran's attorney contends, essentially, that the extent to which the Veteran's right knee arthritis flare-ups impact his range of motion remains in question. The representative argues that the severity of any limitation of motion of the Veteran's right knee during periods of flare-ups has not been specifically addressed by a medical professional. The representative further contends that the medical evidence of record is in conflict as to whether the Veteran suffers from flare-ups, noting that while no flare-ups were reported on the most recent May 2013 VA examination, prior VA examinations in April 2009 and November 2011 clearly noted flare-ups, but those notations were without any determination as to the resulting degree of any additional loss of range of motion. The medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the body part is used repeatedly over a period of time, and that because the diagnostic criteria provide for a rating on the basis of loss of range of motion, these determinations should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). Despite the delay that results from another remand, the Board finds that in order to be consistent with the Board's discussion in the October 2012 remand, in regard to the February 2011 Joint Motion specifically stating that previous VA examinations were inadequate as they did not provide an evaluation of additional limitation due to flare-ups, including additional loss of range motion, the contentions set forth by the Veteran's attorney need to be addressed by the January 2013 VA examiner, if available, in a supplemental opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995); Colvin v. Derwinski, 1 Vet. App. 191 (1999) (Board prohibited from exercising its own independent judgment to resolve medical questions). The Veteran should only undergo further examination if the prior examiner is not available, or the prior examiner cannot provide the requested opinion without first examining the Veteran. Accordingly, the case is REMANDED for the following action: 1. Forward the entire claims file to the examiner who prepared the January 2013 VA examination report for a supplemental opinion. The examiner must review the claims file and should note that review in the report. The examiner should provide the following information. (a) The examiner is requested to reconcile prior VA examinations in which the Veteran reported flare-ups with the current January 2013 VA examination in which no flare-ups were noted. (b) The examiner is requested to opine whether pain could significantly limit functional ability during flare-ups or when the body part is used repeatedly over a period of time. That determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. If the prior examiner is unavailable, or is unable to provide the requested supplemental opinion without examining the Veteran, schedule the Veteran for an additional VA examination, by an examiner with the appropriate expertise. The examiner should set forth all current complaints and findings pertaining to right knee arthritis. Conduct all necessary tests, to include X-rays, and range-of-motion and repetitive motion studies. All ranges of motion should be expressed in degrees. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. The examiner is requested to reconcile prior VA examinations in which the Veteran reported flare-ups with the January 2013 VA examination in which no flare-ups were noted and current examination findings. The examiner is requested to opine whether, during any period of the appeal, pain could significantly limit functional ability during flare-ups or when the body part is used repeatedly over a period of time. That determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. 2. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).