Citation Nr: 1336119 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-33 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee. 2. Entitlement to a compensable disability rating for limitation of extension of the right knee. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to October 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2011, the Board remanded the Veteran's claims. The Appeals Management Center (AMC) continued the previous denial of the claims in an August 2012 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2013), pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these 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, 38 (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). The Veteran was afforded a VA examination for his right knee disabilities in October 2011. Pertinently, the Veteran complained of pain, flare-ups, and difficulty walking extended periods. He also reported that he could no longer do yard work or run for exercise. Upon examination, range of motion testing of the Veteran's right knee revealed flexion up to 100 degrees with pain at 100 degrees. Extension was recorded at zero degrees. Crucially, however, the examiner did not indicate where objective evidence of painful motion began with regard to the right knee extension. Moreover, the examiner reported functional loss due to the right knee disabilities which was manifested by pain on movement. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of flexion or extension. In Mitchell, the Court found similar examination findings to be inadequate because the examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." In this case, it was not explicitly reported at what point in the range of right knee extension that pain began and at what point, if any, pain caused functional impairment. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Thus, in this case, in light of holding in Mitchell, the Board finds that an additional examination of the right knee is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his service-connected right knee disabilities. The claims folder is to be provided to the examiner for review in conjunction with the examination. The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's service-connected right knee disabilities as well as any neurological and orthopedic manifestations. In particular, the examiner should indicate the point during range of motion testing that motion is limited by pain as well as the impact of weight-bearing on the Veteran's range of motion. Consideration should be given to any loss due to reduced or excessive excursion, or due to decreased strength, speed, or endurance, as well as any functional loss due to absence of necessary structures, deformity, adhesion, or defective innervation. In particular, the examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's inquiry in this regard should not be limited to muscles or nerves, but should include all structures pertinent to movement of the joint. It is important for the examiner's report to include a description of the above factors that pertain to functional loss due to the right knee disabilities that develops on use. Based on current examination of the Veteran as well as review of the evidence of record to include postservice treatment reports and prior physical examinations of the Veteran, the examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. Any report prepared must be typed. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If any benefit sought on appeal remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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 A. PAPPAS 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).