Citation Nr: 1333080 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-05 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for right knee patellofemoral chondrosis, rated as 10 percent disabling prior to April 1, 2013, and as 20 percent disabling from that day forward, except for periods when temporary total ratings were in effect. 2. Entitlement to an increased rating in excess of 10 percent for right knee instability throughout the appellate period. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from September 1987 to October 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran provided testimony during a hearing before the undersigned at the RO in August 2012. A transcript is of record. The claim was remanded by the Board in February 2013. Unfortunately, the requested development has not yet been completed. Accordingly, 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 In its remand, the Board noted that although an April 2012 VA examiner noted right knee functional loss or impairment in the form of less movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement but did not note the point, if any, at which such factors caused functional impairment. Unfortunately, the new examination report provided by the same VA examiner in April 2013 did not provide the requested information. The Court has instructed that in applying the applicable regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32 (Vet. App. 2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2013). Therefore, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's right knee disability, to include the impact of such functional factors as pain, weakened movement, excess fatigability, and incoordination. The Board also requests that records of ongoing VA treatment be obtained. Finally, the Court has held that a total disability rating for compensation based on Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and associate them with the claims file or virtual file. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above development has been completed, the Veteran should be afforded a VA examination with a qualified physician to determine the current severity of the service-connected right knee disability. The examiner should review the claims folder, a copy of this remand, and any evidence in Virtual VA. All indicated testing should be conducted. The examiner should report the range of motion of the right knee in degrees. The examiner should report whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. The examiner must inquire as to periods of flare-up and note the frequency and duration of any such flare-ups. The examiner must equate all functional losses due to pain, incoordination, fatigue, weakness, and flare-ups, etc., to additional loss of motion (beyond what was shown on clinical examination). In other words, all functional deficits should be described by equating the collective effect of those deficits to a level of disability contemplated by a certain limitation of motion even though such limited motion is not shown on the examination. (This requires a certain degree of conjecture on the examiner's part, but is required for rating the right knee disability.) The examiner should report all neurologic impairment resulting from the service-connected right knee disability. The examiner should also opine as to the severity of that impairment, in terms of mild, moderate, or severe. If there is neurologic impairment of the lower extremities that is not related to the service-connected right knee disability, the examiner should so report. Thereafter, if the Veteran is unemployed, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected bilateral knee, lumbar spine, and psychiatric disabilities, alone or in combination, render her unable to secure or follow a substantially gainful occupation for which her education and experience would otherwise qualify her. The examiner should set forth all examination findings, along with a complete rationale for any opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 4. After completion of all requested and necessary development, including any development made necessary if the Veteran is unemployed, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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 2002 & Supp. 2012). _________________________________________________ J. A. MARKEY 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) (2013).