Citation Nr: 1622220 Decision Date: 06/02/16 Archive Date: 06/13/16 DOCKET NO. 06-34 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia of the right knee. 2. Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia of the left knee. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Historically, in September 2010, the Board remanded the Veteran's claims for increased ratings for bilateral knees, as well as the claim of entitlement to TDIU under the holding in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In October 2012, the Board denied the Veteran's claims for increased ratings for his service connected disabilities, and again remanded the issue of entitlement to TDIU for further development. The Veteran appealed the denial portion of that decision to the Court of Appeals for Veterans Claims (Court). In a June 2014 memorandum decision, the Court set aside the Board's denial of these issues and remanded the matters for additional reasons and bases. The Board again remanded the issue of entitlement to TDIU in August 2013. In February 2015, the Board issued a remand so that the Veteran could be afforded a new VA examination in connection with his increased rating claims. Because his appeals regarding entitlement to higher ratings for his service-connected knee disabilities could affect the ultimate outcome of any TDIU claim, that issue was remanded as intertwined and deferred pending adjudication of the increased rating claims. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that an additional remand is necessary to ensure that a complete record is available for the Board to rely upon in adjudicating these matters. Once VA undertakes to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21, Vet. App. 303, 311 (2007). A medical opinion will be considered adequate when it is based upon consideration of the Veteran's prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board's evaluation of the claimed disability will be a fully informed one. Id.; Green v. Derwinski, 1, Vet. App. 121, 124 (1991). If a diagnosis is not supported by the findings on the examination report, or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2015). On appeal before the Board is the issue of increased disability ratings for chondromalacia of the bilateral knees. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). When evaluating knee disabilities, separate ratings may be assigned based on limitation of flexion and limitation of extension of the same knee joint under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 6261, respectively. VAOPGCPREC 09-04 (September 17, 2004). A separate rating may also be assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for other knee impairments or Diagnostic Codes 5258-5259 for cartilage impairments, and Diagnostic code 5010, where there is x-ray evidence of arthritis in addition to recurrent subluxation, lateral instability, or symptoms of licking, pain, and effusion related to the removal or dislocation of semilunar knee cartilage, but only if there is additional disability due to limitation of motion. See VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997); VAOGCPREC 9-98, 63 Fed. Reg. 56703 (1998). In June 2015, following the Board's most recent remand in this matter, the Veteran presented for a VA examination. That examination noted the presence of bilateral meniscus tears, raising the possibility of an alternative, if not secondary rating based on dislocation of semilunar cartilage. In September 2015, the RO requested an addendum opinion, asking whether those tears were due to or the result of the service-connected chondromalacia. The examiner stated that the question could not be resolved without mere speculation. The Board finds this statement to be inadequate. Particularly, the rationale given for the opinion relied exclusively on the fact that the doctor who initially documented the condition in the left knee in 2012 did not state the cause. However, no medical rationale was given, and the opinion did not address the tear found in the right knee at all. Accordingly, because the Board cannot state whether the bilateral meniscus tears are evidence of further degeneration of the Veteran's chondromalacia, the Board finds that the Veteran be scheduled for an examination with a specialist to address this issue. Additionally, when evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which additional functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In the June 2015 VA examination report, the examiner stated that the DeLuca/Mitchell provisions cannot be clearly delineated because it was possible that the Veteran could have further limitation in range of motion when he returns to his usual day-to-day activities. However, the examiner stated that giving any possible loss in degrees of motion would resort to mere speculation. The Board would request that on remand, this issue be addressed by the examining physician and should include an estimated additional loss in degrees of motion, if possible. If not possible, a comprehensive explanation is to be provided. Finally, because the outcome of the appeal for higher ratings for service-connected knee disabilities could affect the adjudication of the claim for TDIU, and because the Board has also referred the issue of entitlement to an increased rating for PTSD for adjudication, above, the appeal for entitlement to TDIU must be remanded as intertwined and deferred pending adjudication of all of the increased rating claims. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a new VA examination, to be conducted by an orthopedist or other specially training physician (due to the nature, extent, and complexity of the service-connected knee matters), to evaluate the current nature and severity of his bilateral knee disabilities. The complete claims file, including the Veteran's complete medical records and a copy of this remand, is to be made available to the examiner selected to conduct the examination. All necessary diagnostic testing should be conducted. In addition to documenting any symptoms such as range of motion, the examiner is explicitly requested to state whether it is at least as likely as not that the Veteran's documented bilateral meniscus tears constitute a completely separate disability from (implying a different etiology), or in the alternative, are the result of worsening of his service-connected chondromalacia of the bilateral knees. The examiner should also specifically address the Veteran's lay statements describing flare-ups, instability, and locking of both knees. If the examiner agrees that additional limitation of motion is possible due to any of the DeLuca/Mitchell factors, then any such limitation of motion should be so stated in terms of loss of degrees. If is it not possible, the examiner must explain why. 2. Thereafter, readjudicate the issues on appeal in light of all evidence of record. If any benefit on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and afford adequate time to respond before returning the matter to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the 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 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 2014). _________________________________________________ PAUL SORISIO 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. 38 C.F.R. § 20.1100(b) (2015).