Citation Nr: 1343518 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 06-28 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for chronic interior cruciate ligament deficiency of the right knee, with posttraumatic degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and her spouse ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1981 to April 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In November 2011, the Board denied the issue of entitlement to an initial evaluation in excess of 10 percent for a chronic interior cruciate ligament deficiency of the right knee, with posttraumatic degenerative joint disease. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In an Order, dated in December 2012, the Court remanded the case based on a Joint Motion to Remand (Joint Motion). Accordingly, in July 2013, the Board vacated that part of the November 21, 2011 decision of the Board that denied entitlement to an initial evaluation in excess of 10 percent for a chronic interior cruciate ligament deficiency of the right knee, with posttraumatic degenerative joint disease, and remanded the claim for additional development. The case has been returned to the Board for further appellate consideration. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran seeks a higher initial evaluation for her service-connected right knee disorder, with degenerative joint disease. Her service-connected right knee disorder, with degenerative joint disease, is currently rated based on limitation of motion of the right knee. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). In the July 2013 remand, the Board noted that when the Veteran was examined by VA in August 2011, the examiner noted that the Veteran experienced flare-ups, with increased pain and swelling above her baseline three to four times a year. The examiner noted that the Veteran had pain on movement, and swelling after repetitive movement testing, which contributed to functional loss. However, the examiner did not provide information regarding additional functional loss in terms of limitation of motion resulting from swelling on flare-ups or after repeated use. The Board observed that examinations provided to evaluate the extent of a veteran's functional loss of the musculoskeletal system 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 (2011); see 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202, 205-06 (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. Mitchell, 25 Vet. App. at 44. 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. Id. The Board found that the August 2011 VA joints examination failed to address all of these criteria. Thus, in July 2013 the Board found that an additional examination of the right knee was warranted to determine the current manifestations of the Veteran's right knee disorder, with degenerative joint disease, to include whether any pain found to be present could significantly limit the Veteran's functional ability during flare-ups or upon repetitive motion of the right knee. In August 2013, subsequent to the Board's July 2013 remand, the Veteran underwent a VA knee and lower leg conditions examination. However, review of the examination report reflects that it does not fully comply with the Board's instructions in the July 2013 remand for the reasons explained below. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). When the Veteran underwent VA examination in August 2013, the examiner reported that the Veteran did report that flare-ups impact the function of the knee and/or lower leg. The examiner indicated that the Veteran did not have additional limitation in range of motion of the knee and lower leg flowing repetitive-use testing, but she did have function loss, functional impairment, or additional limitation of range of motion of the knee and lower leg after repetitive use due to factors including less movement than normal on the right and interference with sitting, standing, and weight-bearing on the right. At the end of the examination report, the examiner opined that it is at least as likely as not that there would be increased pain, weakness, fatigability, or incoordination during repeated use or during flares. The examiner also stated that "[t]here would be decreased range of motion approximately 11-25 degrees due to increased pain and to swelling." However, the Board observes that the examiner failed to specify whether this additional loss of motion resulting from pain and swelling on flare-ups or after repeated use would be a loss of flexion, extension, or some combination of both. Additionally, it is unclear whether the examiner found that the 11-25 degree decrease in range of motion would be the total range of motion loss during a flare-up or after repeated use, or whether the estimate indicated an additional 11-25 degrees of loss of range of motion beyond the current loss of range of motion findings. Therefore, the Board finds that clarification is required regarding the Veteran's additional functional loss in terms of limitation of motion resulting from swelling and pain on flare-ups or after repeated use. Accordingly, the case is remanded for the following action: 1. The RO must return the Veteran's claims file to the VA examiner who provided the August 2013 VA knee and lower leg conditions examination concerning the Veteran's service-connected right knee disorder, and request clarification regarding the examiner's opinion that "[t]here would be decreased range of motion approximately 11-25 degrees due to increased pain and to swelling." The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Regarding the examiner's opinion that during flare-ups or after repeated use "[t]here would be decreased range of motion approximately 11-25 degrees due to increased pain and to swelling," the examiner should specifically address: * Whether the decreased range of motion of 11-25 degrees during a flare-up or after repeated use would be a loss of range of motion in flexion or extension * Whether the decreased range of motion of 11-25 degrees would be the total range of motion loss during a flare-up or after repeated use, or an additional 11-25 degrees of loss of range of motion beyond the current loss of range of motion findings. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The report prepared must be typed. 2. If the examiner who performed the August 2013 VA knee and lower leg conditions examination is no longer available, the Veteran must be afforded the appropriate VA examination to determine the current severity of her service-connected right knee disorder. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail, including any scarring. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the right knee experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected right knee. Specifically, with regard to ranges of motion: * Note any range of motion loss that is specifically attributable to pain. * Note any additional functional loss with repetition. * Discuss whether any functional loss is attributable to pain during flare-ups and then quantify in degrees the motion loss during such flare-ups. * Note whether pain affects the normal working movement of the right knee, including any decreased movement, strength, speed, or endurance. * Note any excess fatigability, incoordination, and pain on movement. * State whether pain could significantly limit functional ability during flare-ups or when the right knee is used repeatedly over time. * Provide a medical opinion concerning the extent of functional and industrial impairment resulting from her right knee. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The report prepared must be typed. 3. The RO must notify the Veteran that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and her representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).