Citation Nr: 1335801 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-08 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a compensable disability rating for residuals of a stress fracture to the right medial tibial plateau, prior to May 20, 2011, and to a disability rating greater than 10 percent since May 20, 2011. ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active service from May 1975 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Louisville, Kentucky, that, in pertinent part, denied a compensable disability rating for the service-connected residuals of a stress fracture to the right medial tibial plateau. During the pendency of this appeal, by rating action dated in December 2011, the RO determined that the service-connected residuals of a stress fracture to the right medial tibial plateau warranted a 10 percent disability rating, effective as of May 20, 2011, the date a VA examination reflected findings sufficient to establish entitlement to a higher rating. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, therefore, the issue remains in appellate status. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Board notes that the issues on appeal had included entitlement to service connection for a low back disability. However, during the pendency of the appeal, by rating action dated in March 2011, service connection was granted. As this represents a complete grant of the benefit sought on appeal, the issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 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. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013). The Veteran's service-connected residuals of a stress fracture to the right medial tibial plateau are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2013). This Diagnostic Code, along with the others pertaining to the knee and leg, consider the Veteran's limitation of motion of the right knee in determining the appropriate disability rating. The United States Court of Appeals for Veterans Claims (Court) has repeatedly held that examinations provided to evaluate the extent of a Veteran's functional loss of the musculoskeletal system under rating codes based on limitation of motion must determine whether any pain found to be present could significantly limit functional ability during flare-ups or upon repetitive motion. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); see 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202, 205-6 (1995). These determinations, should, if feasible, be portrayed in terms of the additional range-of-motion loss due to pain on use or flare-ups. Id. Where this information is not provided in the examination report, or the report does not include an explanation for why this information could not feasibly be provided, the examination report is inadequate for rating purposes. Mitchell, 25 Vet. App. at 44. A VA joints examination report dated in May 2011 shows that the Veteran reported flare-ups and pain in his right knee. However, the VA examiner did not adequately address the DeLuca and Mitchell requirements. The VA examiner found that the Veteran did have pain upon active ranges of motion of the right knee and upon repetitive motion of the right knee. The examiner, however, did not address where pain started upon range of motion testing. The examiner also did not discuss whether any functional loss was attributable to pain during flare-ups. Therefore, the Board finds the VA examination is inadequate. On remand, the Veteran must be afforded another VA examination. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). See also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes); Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disability and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The RO/AMC shall schedule the Veteran for an appropriate VA examination to assess the nature and severity of his residuals of a stress fracture to the right medial tibial plateau. Any indicated tests and studies must be conducted. The claims file must be made available to the examiner for review in conjunction with the examination, and such shall be reflected in the report. The examiner must conduct range of motion studies measured in degrees, with normal ranges of motion specified. The examiner must determine whether there are objective clinical indications of pain or painful motion; weakened movement; premature or excess fatigability; or incoordination; and, if feasible, these determinations must be expressed in terms of the degree of additional range of motion loss due to such factors. This includes instances when these symptoms "flare-up" or when the joint is used repeatedly over time. This determination shall also be portrayed, if feasible, in terms of the degree of additional range of motion loss due to these factors. The examiner must specify whether there is any instability in the affected joint and, if so, the severity thereof (e.g., slight, moderate or severe); and whether there are episodes of locking. The examiner must identify any manifestations of residual scars associated with the affected joint. In addition to scarring, any muscle and/or neurological impairment constituting a distinct disability capable of being separately rated must be identified. The examiner is also asked to comment on the impact of the claimed increase in severity of the disability, if any, on his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefits sought on appeal remains denied, the Veteran shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. Claims remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).