Citation Nr: 1800402 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-02 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased disability rating for service-connected left knee, status post total knee replacement, currently with a 10 percent evaluation prior to July 28, 2008, a temporary 100 percent evaluation from July 28, 2008 to August 31, 2009, a 60 percent evaluation from September 1, 2009 to January 8, 2012, temporary 100 percent evaluations from January 9, 2012 to January 31, 2012 and from February 1, 2012 to February 28, 2013, and a 60 percent evaluation from March 1, 2013 to present. 2. Entitlement to an increased disability rating for service-connected osteoarthritis, right knee, currently with a 10 percent evaluation from June 26, 2006 and with a separate 10 percent evaluation for patellar subluxation from November 13, 2013. 3. Entitlement to a compensable initial disability rating for service-connected bilateral knee scars. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1979 to July 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which continued the 10 percent evaluations previously assigned for service-connected left and right knee disabilities, and granted service connection for bilateral knee scars with a noncompensable disability rating. The Veteran presented testimony at a November 2013 Board videoconference hearing before the undersigned Veterans Law Judge. The Veteran also presented testimony before a Decision Review Officer (DRO) at a formal hearing held at his local RO in February 2010. Transcripts of these hearings are of record. In the January 2008 rating decision here on appeal, the RO denied an increased rating for the Veteran's service-connected left knee chondromalacia patella, then evaluated as 10 percent disabling. The Veteran appealed the denial and by a June 2009 rating decision, the RO granted a temporary 100 percent evaluation for the left knee effective July 28, 2008 for surgical treatment requiring convalescence and a 30 percent evaluation effective September 1, 2009, for prosthetic replacement of the knee joint. In a March 2013 DRO decision, a temporary 100 percent evaluation was assigned for the left knee effective January 9, 2012 for hospitalization over 21 days, a temporary 100 percent evaluation was assigned effective February 1, 2012 based on surgical or other treatment necessitating convalescence, and a 30 percent evaluation was assigned for the left knee from July 1, 2012. In an August 2014 decision, the Appeals Management Center (AMC) granted a separate 10 percent evaluation for right knee patellar subluxation, effective November 13, 2013. Finally, in a June 2017 decision, the AMC granted a partial increased rating for the left knee status post total knee replacement, increasing the rating to 60 percent from September 1, 2009 to January 8, 2012, extending the latter temporary 100 percent evaluation to February 28, 2013, and granting an increased 60 percent evaluation from March 1, 2013 to present. Although increased ratings have been granted, the Veteran's claims seeking increased ratings for each service-connected knee disability remains in appellate status, as the maximum schedular rating has not been assigned (excluding the periods during which the Veteran was awarded a temporary 100 percent evaluation). See AB v. Brown, 6 Vet. App. 35 (1993). The Board remanded the case for further development in February 2014 and October 2016. It has since been returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In October 2016, the Board remanded these issues in part to provide the Veteran with adequate VA examinations pertaining to the severity and manifestations of her left and right knee disabilities and left and right knee scars. The Veteran was provided with additional VA examination in December 2016. The examination report was completed on a Disability Benefits Questionnaire, and does not fully respond to the questions presented by the Board in its October 2016 remand instructions. The examination report is deficient in a number of respects: 1) the knee examination recorded initial range of motion measurements and noted that there was objective manifestations of painful flexion, but did not indicate the degree at which the pain was first demonstrated; 2) while further expected diminished range of motion following repeated use over time and during flare-ups was provided in terms of approximate degrees of limited motion, there is no explanation as to how the examiner determined these numbers; 3) the examiner included the Veteran's description of symptoms during flare-ups, but did not solicit or record details as to the frequency and duration of such flare-ups. Some of these deficiencies appear to have been acknowledged by the AOJ in a June 2017 VA Form 21-6798 Deferred Rating Decision. The record does not reflect that any follow-up has been conducted. The examination report from the December 2016 skin examination is also found to be inadequate, due to its internal inconsistency with respect to the central questions at issue. Under the medical history section, the examiner noted that the Veteran had 4 painful scars, noting that the Veteran stated that the pain, especially of the scar related to the left knee replacement, "feels at times like it pulling tight (sic) it swells up." The examiner also checked the box for "yes" for the question of whether the Veteran has any scars of the extremities with frequent loss of covering of skin over the scar, indicating involvement of 4 scars. She wrote that the Veteran indicated that "it tightens then it loosens. You hear metal clinging sometimes, it locks on him (sic) with swelling." For the question of whether the Veteran had any scars that are both painful and unstable, she checked the "yes" box and indicated that there were 4 such scars. She then wrote that the Veteran indicated the location of the left knee and legs, and indicated that the right knee swells and gets hot. The examiner wrote that "[t]here is no tenderness on palpation of the right lower extremity scar(s). There are no unstable right lower extremity scar(s) upon inspection. There is no tenderness on palpation of the left lower extremity scar(s). There are no unstable left lower extremity scar(s) upon inspection." Given the contradictory notations and remarks, clarification is needed. Finally, the Board indicated that after completing all requested development, and any additional development deemed necessary, the AOJ should readjudicate the claims on appeal and if they could not be granted in full, issue a Supplemental Statement of the Case to the Veteran and her representative and give them an opportunity to respond before the file was returned to the Board for further appellate consideration. The record does not show that an SSOC has yet been issued. 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). On remand, the AOJ must ensure that the Veteran is provided with adequate VA examinations to assess the severity and manifestations of her left and right knee disabilities and lower extremity scars, and then issue her a Supplemental Statement of the Case. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all of the Veteran's outstanding VA treatment records, including those from March 2016 to the present, and associate them with the claims file. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. Schedule the Veteran for an additional VA examination pertaining to the severity and manifestations of her left and right knee disabilities with an appropriate medical professional ("examiner") who has not yet provided an examination/opinion in this matter. All indicated studies must be conducted, including range of motion studies using a goniometer, and all findings reported in detail. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination, and the examiner should specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. The instructions from the October 2016 remand are copied below, with emphasis placed on queries for which the prior examination report was found lacking. The examiner should respond to each question in full, but their attention is particularly directed to the bolded areas. After reviewing the medical and lay evidence of record, and interviewing the Veteran, the examiner should address the following: a. Conduct full range of motion studies for the left and right knee and document findings in terms of degrees. Further, conduct range of motion testing, recording the degree at which objective evidence of pain begins, under each of the following conditions: * on weight-bearing * on nonweight-bearing and * on active motion * on passive motion If there is no clinical evidence of painful motion on any such testing, the examiner must so state, and indicate that testing under each condition was performed. The Board notes that while the December 2016 examination report documented objective evidence of painful motion on flexion, the degree at which such pain first manifest was not recorded. b. Provide specific findings as to the range of motion of each knee after three repetitions of movement, and state whether there is additional functional impairment of each knee due to pain, weakness, excess fatigability, and/or incoordination. Any additional loss of range of motion upon repetitive motion testing should be noted in terms of degrees of motion lost as well as additional symptomatology which results, if possible. If such information cannot be feasibly determined, the examiner must explain why this information cannot be provided. c. After reviewing the Veteran's complaints and medical history, and requesting further detail from the Veteran if necessary, provide an opinion regarding whether there is additional functional impairment of each knee due to pain, weakness, excess fatigability, and/or incoordination during flare-ups. The Veteran's reports of the effects, frequency and duration of flare-ups should be recorded with as much specificity as possible (e.g. "flare-ups of severe pain lasting for X minutes/hours after standing/walking for Y minutes requiring the Veteran to stay seated/significantly decrease her walking speed/etc... throughout the duration of the flare-up" rather than "flare-ups of pain with prolonged standing"). Any additional loss of range of motion of each knee during flare-ups should be noted in terms of approximate degrees of motion lost as well as additional symptomatology which results, to the extent possible. The examiner must explain how they determined their approximation as to additional degrees of motion lost. Protective measures regularly taken by the Veteran to avoid flare-ups should also be documented. The December 2016 examination report indicates that the Veteran reported flare ups of knee pain occur with standing or walking, with duration and frequency varying from day to day. Further detail is needed concerning the duration and frequency of flare-ups, which may be provided as a range, if necessary. The examiner should consider the Veteran's described symptomatology, as well as medical evidence of record, in making this determination. If approximate degrees of motion lost cannot be feasibly determined, the examiner must explain why this information cannot be provided. d. Considering the evidence of record, objective findings from the examination, and the Veteran's subjective reports, indicate whether the Veteran has any recurrent subluxation and instability of each knee and if so, note the extent and severity of such instability (i.e. slight, moderate, or severe). In reaching a conclusion, the examiner should comment upon the Veteran's use of any assistive devices. e. Comment on the functional impact of the Veteran's knee disabilities on her activities of daily living, to include occupational activities. To the extent possible, provide an opinion as to the resulting limitations on both physical and sedentary occupational tasks. If the Veteran is currently unemployed, the examiner should still provide an opinion as to the resulting limitations that would be expected were the Veteran currently employed. A clear rationale for all opinions expressed should be provided and a discussion of the facts and medical principles involved should be included. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 3. After completing Part 1, above, refer the Veteran's claims file to the VA physiatrist who conducted the December 2016 VA scars/skin examination, or if unavailable, to another appropriate medical professional, for an addendum medical opinion as to the severity and manifestations of the Veteran's service-connected scars of the left and right lower extremity. The examiner must be given full access to the Veteran's complete VA claims file and the Veteran's electronic records for review, and must specifically note on the report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. If, after review of the file, it is determined that another VA examination is necessary, such must be scheduled and the Veteran must be notified. a) Provide clarification as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's scars of the left and right lower extremities are actually: i) painful; ii) unstable, with frequent loss of covering of the skin over the scar; or iii) both painful and unstable It is noted that boxes for "yes" on the December 2016 examination report were checked seeming to indicate that the Veteran's had 4 scars which were both unstable and painful, but the description contained below the question and in a separate opinion indicated that the scars were not unstable or painful on inspection. b) Provide an opinion as to the following: i. Whether the Veteran currently has, or during the appeal period has had, hypopigmentation on the left leg (not limited to the scars), addressing the evidence of record noting the presence of hypopigmentation, described by the Veteran as painful at the Board hearing and in a November 2013 orthopedic surgery note. The examiner's attention is directed to an April 2014 VA treatment record noting the presence of hypopigmentation of the medial proximal tibia, left. ii. If so, whether the hypopigmentation is at least as likely as not (50 percent or greater probability) caused and/or aggravated by the service-connected left knee disabilities (total knee replacement/revision and/or scars). If so, the examiner should further assess any associated symptoms/limitations associated with the hypopigmentation and the severity of such. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. A clear rationale for all opinions expressed should be provided and a discussion of the facts and medical principles involved should be included. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 4. Thereafter, review the requested VA medical examination and opinion reports to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. 5. After completing the aforementioned, and any further development deemed necessary in light of the expanded record, readjudicate the Veteran's claims of entitlement to increased disability ratings for her service-connected bilateral knee disabilities and entitlement to an initial compensable disability rating for scars of the bilateral knees. If the benefits sought on appeal are not granted in full, the Veteran and her 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 consideration. 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).