Citation Nr: 1519329 Decision Date: 05/05/15 Archive Date: 05/19/15 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 Veteran, Partner, and Mother ATTORNEY FOR THE BOARD K. Haddock, Counsel INTRODUCTION The Veteran had active service from August 1983 to December 1983. This case 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. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2006 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. This case was previously before the Board. In a March 2002 decision, the Board granted a rating of 10 percent for right knee arthritis, but denied a rating in excess of 10 percent. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. In a March 2003 Order, the Court granted a Joint Motion of the parties and remanded the case to the Board for action consistent with the Joint Motion. In October 2003 and June 2005, the case was remanded by the Board for additional development. In a June 2006 decision, the Board denied a rating in excess of 10 percent for right knee arthritis. The Veteran appealed that decision to the Court. In an April 2007 Order, the Court granted a Joint Motion of the parties and remanded the case to the Board for action consistent with the Joint Motion. In January 2009, the case was remanded by the Board for additional development. In a June 2010 decision, the Board denied entitlement to a rating in excess of 10 percent for right knee arthritis. The Veteran appealed that decision to the Court. In a February 2011 Order, the Court granted a Joint Motion of the parties and remanded the case to the Board for action consistent with the Joint Motion. In July 2011, October 2012, and October 2013, the case was remanded by the Board for additional development. The case has now been returned to the Board for further appellate action. REMAND The Board finds that additional development is required before the claim on appeal is decided. In the October 2012 remand, the Board directed that the Veteran be provided a new VA examination to accurately determine the current level of severity of all impairment resulting from his right knee arthritis, to specifically include identifying the functional limitations during a period of flare-up. A review of the record shows that the Veteran was afforded the requested examination in November 2013. However, the examiner did not specifically identify the functional limitations the Veteran experienced during a period of flare-up. In the October 2013 remand, the Board directed that the claims file be returned to the VA examiner for an addendum report regarding functional limitations during a period of flare-up. In an April 2014 addendum, the November 2013 VA examiner reported that the Veteran's knee pain, instability, and weakness could significantly limit his functional ability during a flare-up. However, the examiner noted that it would be difficult to determine the extent of the right knee limitation of motion during a flare-up unless the Veteran was examined during a period of flare-up. In an October 2014 statement, the Veteran's representative argued that the November 2013 VA examination report and April 2014 addendum were inadequate as the examiner failed to reconcile previous VA examinations and did not provide an opinion as to why functional loss during flare-ups could not be made based on a review of the records; that the examination did not occur during a period of flare-up and there was no explanation as to why an examination could not be conducted during a period of flare-up; and while the examiner noted that the Veteran's right knee symptoms would significantly limit his functional ability, the examiner did not provide information which would quantitatively measure how much loss of motion would be considered significant. As the Veteran's representative has argued that the November 2013 VA examination report and April 2014 addendum are incomplete, the Board finds that the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from service-connected right knee arthritis, to specifically include identifying the functional limitations caused by the disability during a period of flare-up. Additionally, efforts to identify and obtain any outstanding, pertinent treatment records should be made before a decision is made in this case. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. 2. Then, schedule the Veteran for a VA examination, by a medical doctor examiner who has not previously examined the Veteran, to determine the current level of severity of all impairment resulting from his service-connected right knee arthritis. The examiner must review the claims file and note that review in the report. The rationale for all opinions expressed must be provided. Attempts should be made, if possible, to schedule the Veteran for the requested VA examination during a period of flare-up. 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 range of motion studies. All ranges of motion should be expressed in degrees. Describe any functional limitation due to pain, weakness, fatigability, lack of endurance, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to pain, weakness, fatigability, lack of endurance, or incoordination should be noted. If the Veteran describes flare-ups, the examiner must offer an opinion as to whether there would be additional limits on functional ability during a period of flare-up. All losses of function due to symptoms such as pain should be identified in additional degrees of limitation of right knee flexion and extension. If the examination is not conducted during a period of flare-up, the examiner is requested to determine whether additional functional limitations, identified in additional degrees of limitation of flexion and/or extension, can be determined based on a review of the treatment notes of record. The examiner is also asked to reconcile prior VA examinations in which the Veteran reported flare-ups with both the January 2013 VA examination, at which time no flare-ups were noted, and the current examination findings. The examiner is requested to opine whether, during any period of the appeal, pain could limit functional ability during either a flare-up or upon repetitive use. That determination should be identified in terms of the additional degrees of flexion and/or extension lost due to pain on use during a flare-up or upon repetition. 3. Then, readjudicate the claim on appeal. If the decision is 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 2014). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).