Citation Nr: 1635420 Decision Date: 09/09/16 Archive Date: 09/20/16 DOCKET NO. 12-17 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for residuals of a right patella fracture with traumatic arthritis. 2. Entitlement to a disability rating in excess of 20 percent for residuals of a left knee injury with traumatic arthritis. 3. Entitlement to an initial disability rating in excess of 10 percent for limitation of extension in the right knee associated with residuals of a right patella fracture with traumatic arthritis. 4. Entitlement to an initial disability rating in excess of 10 percent for limitation of flexion in the right knee associated with residuals of a right patella fracture with traumatic arthritis. 5. Entitlement to an initial disability rating in excess of 10 percent for limitation of flexion in the left knee associated with residuals of a left knee injury with traumatic arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to September 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge via a video conference in December 2014. A transcript of that hearing has been associated with the claims file. In February 2015, the Board remanded the increased rating claims for further development. The case has since returned to the Board for further appellate consideration. In July 2015, the Agency of Original Jurisdiction (AOJ) granted service connection for limitation of extension of the right knee, rated as 10 percent disabling; limitation of flexion of the right knee, rated as 10 percent; and limitation of flexion of the left knee, rated as 10 percent disabling. The Veteran did not appeal either of those ratings. However, as these limitation of motions stem from the knee disorders and are to be considered in the criteria for evaluating the severity of the knee disorders, see 38 C.F.R. § 4.71a , the Board has jurisdiction over them as part of rating the knee disorders. In an April 2015 rating decision, the RO continued the denial of service connection for early osteoarthritis, bilateral hips (claimed as bilateral hip condition) as secondary to the service connected disability of bilateral knee condition. In a July 2015 Notice of Disagreement (NOD), the Veteran expressed disagreement with the denial listed above. The Agency of Original Jurisdiction (AOJ) acknowledged receipt of the NOD by way of an August 2016 letter. The Veteran was also informed that additional development might take place and if the appeal could not be granted, the AOJ would issue a statement of the case. As the AOJ has acknowledged receipt of the NOD and additional action is pending at the AOJ, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As such, a remand for this issue is not warranted at this time. This case was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Pursuant to the Board's February 2015 Remand, the Veteran was afforded a new VA examination in July 2015. However, the July 2015 VA examination is inadequate because the examiner did not indicate whether range of motion test results reflect testing on passive or active motion or whether testing was performed under weight-bearing or nonweight-bearing modes. Thus, on remand, the Veteran should be provided with an adequate examination. In addition, as noted above the Veteran receives compensation based on his painful motion. According the July 2015 VA examination, the Veteran's meniscii are torn, which allows for consideration of diagnostic criteria pertaining to meniscal injury. See 38 C.F.R. § 4.71, Diagnostic Codes 5258 (dislocated semilunar cartilage) and 5259 (symptomatic removal of semilunar cartilage). On remand, the AOJ should consider the applicability of DCs 5258 and 5259 with respect to the service-connected knee disabilities. While on remand, updated VA treatment records should be obtained to ensure that the claims are adjudicated on the basis of an evidentiary record that is as complete as possible. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all relevant VA treatment records from the Miami VAMC dated from July 2015. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 2. After obtaining any outstanding records and associating them with the claims file, schedule the Veteran scheduled for a VA examination of his knees. The examiner must conduct any testing deemed necessary and provide all findings such as range of motion, stability, etc. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner must pay particular attention to the following: (a) The examination must include testing of the each knee joint for pain on both active and passive motion, in weight-bearing and nonweight-bearing. (b) The examiner must provide an opinion on additional loss of range of motion due to pain, weakness, fatigability, and/or incoordination. If there is such additional loss of range of motion, the examiner should express that loss in degrees of additional lost motion. (c) The examiner must provide an opinion as to whether there is additional loss of range of motion during flare-ups. If there is such additional loss of range of motion, the examiner should express that loss in degrees of additional lost motion. d) The examiner should provide information concerning the current severity (e.g., slight, moderate, or severe) of the Veteran's recurrent subluxation or lateral instability. 3. Thereafter, readjudicate the claims on appeal based upon all additional evidence received. The AOJ should give consideration to Diagnostic Codes 5258 (dislocated semilunar cartilage) and 5259 (symptomatic removal of semilunar cartilage). If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned 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). _________________________________________________ K. PARAKKAL 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).