Citation Nr: 1631677 Decision Date: 08/09/16 Archive Date: 08/12/16 DOCKET NO. 13-29 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for patellofemoral pain syndrome, right knee, with degenerative changes, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for patellofemoral pain syndrome, left knee, with degenerative changes, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for valgus instability, right knee, evaluated as 10 percent disabling prior to July 27, 2012, and as noncompensably disabling thereafter. 4. Entitlement to an increased rating for valgus instability, left knee, evaluated as 10 percent disabling prior to July 27, 2012, and as noncompensably disabling thereafter. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Neilson, Counsel REMAND The Veteran served on active military duty from February 1995 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In that decision, the RO denied ratings in excess of 10 percent for patellofemoral pain syndrome with degenerative changes of the right and left knees. In August 2013, the RO granted separate ratings for valgus instability of each knee. An initial 10 percent rating was assigned for each knee, effective from November 5, 2010, to July 27, 2012; a noncompensable evaluation was assigned from July 27, 2012. The instant matters were previously before the Board in July 2015, at which time they were remanded for further development. Specifically, the Board noted that a VA outpatient record dated on September 17, 2013, showed that a magnetic resonance imaging (MRI) scan of the knees was ordered to rule out intraarticular derangements. However, the available medical records then before the Board did not indicate whether the MRI was performed. The Board thus remanded the appeal for clarification of whether the MRI was scheduled and to obtain a copy of the results from any such test. A review of the Veteran's VA treatment records currently associated with his Virtual VA and VBMS files reveals that they do not contain a copy of the results of any MRI preformed on or after September 17, 2013. There is also no indication that the agency of original jurisdiction (AOJ) undertook efforts to clarify whether the ordered MRI was ever in fact performed. Rather, the AOJ simply associated with the record VA treatment records beginning in January 2014, as also instructed to do so. Given that it cannot be determined whether the MRI report does or does not exist, the Board cannot conclude that the terms of the prior remand have been complied with. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). It would also appear that there are additional VA treatment records that exist and have not been associated with the Veteran's electronic claims folder. Notably, on June 10, 2014, the Veteran was seen by a new primary care clinician. Regarding the Veteran's reported knee symptoms, the following plan was recorded: "plain films and then MRI; review and then econsult to ortho for possible arthroscopic surgery on left." A March 2015 VA treatment entry then notes that x-rays were in fact taken in June 2014. However, the x-ray report is not of record, which suggests to the Board that relevant records remain outstanding. Accordingly, the Board finds it necessary to again remand the matter to ensure that the record before it is complete and to ensure compliance with the terms of its prior remand. The Board also finds it necessary to obtain a new VA examination to ensure the adequacy of the medical evidence developed in connection with the Veteran's increased ratings claims. This is so because the Board cannot discern from the report of the August 2015 VA examination whether the Veteran's knee joints were "tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing." 38 C.F.R. § 4.59; see Correia v. McDonald, No. 13-3238, 2016 WL 3591858 at *9 (Vet. App. July 5, 2016) (holding "that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." Further, although the examiner indicated evidence of pain with weight bearing, the examiner did not indicate whether the Veteran's pain contributed to additional range of motion loss. The examiner also indicated objective evidence of pain with motion, but made no specific finding as to the degree of range-of-motion lost due to pain on use. Thus, it is unclear from the examination at what point the Veteran experienced painful motion. The United States Court of Appeals for Veterans Claims (Court) has 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." Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Court stressed that such a finding is important in providing a "clear picture of the nature of the veteran's disability and the extent to which pain is disabling," so as to "allow the Board to ensure that the disabling effects of pain are properly considered when evaluating any functional loss due to pain that is attributable to the veteran's disability." Id. Accordingly, the increased rating claims must be remanded for the Veteran to be afforded another VA compensation examination to more definitively assess the current severity of his service-connected knee disabilities, Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should contact the San Diego Health Care System and determine whether the MRI of the Veteran's knee(s) ordered on September 17, 2013, was in fact performed. If the MRI was not scheduled, or if the Veteran failed to report for such testing, this should be clearly noted in the record. If the MRI was performed, the AOJ must associate a copy of the MRI report with the Veteran's claims folder. The AOJ should also seek to obtain a copy of the June 2014 x-ray report, pertaining to bilateral knee x-rays, and associate it with the record. The AOJ should also ensure that all relevant VA treatment records dated since August 2015 are associated with the Veteran's claims folder. 2. Schedule the Veteran for an examination in connection with his claims for increased ratings for his service-connected bilateral knee disabilities. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. All necessary tests and studies, to include imagining studies, should be conducted and the reports of any such tests or studies should be included in the claims folder. The examiner should be asked to provide a complete assessment of the severity of the Veteran's left and right knee disabilities. The examiner should comment on any arthritis documented by x-ray findings and its relationship to service-connected disability. The examiner should also describe any lateral instability or recurrent subluxation as nonexistent, "slight," "moderate," or "severe." All appropriate tests and studies should be performed and all clinical findings should be reported in detail. The examiner should report the ranges of motion for the left and right knee. Specifically, the examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also state whether the Veteran's left and/or right knee disability is manifested by weakened movement, excess fatigability, incoordination, or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. If pain is present during the range of motion, the examiner should identify at what point during the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 3. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issues on appeal. In readjudicating the Veteran's increased rating claims, the AOJ should also consider the potential applicability of staged ratings should be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2008). If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in denial of the claim. 38 C.F.R. § 3.655 (2015). The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by 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 2014). _________________________________________________ THOMAS J. DANNAHER 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) (2015).