Citation Nr: 1803090 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 09-42 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to a rating higher than 10 percent for degenerative joint disease of the right knee (previously characterized as chondromalacia patella) from December 15, 2009 forward. 2. Entitlement to a rating higher than 20 percent for instability of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case is currently under the jurisdiction of the RO in Montgomery, Alabama. The Veteran testified at a hearing before the undersigned in October 2014. A transcript is of record. In a January 2015 decision, the Board granted a 10 percent rating for the Veteran's right knee disability prior to December 15, 2009, and denied a rating greater than 10 percent for the entire period under review. In an April 2016 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for partial remand (JMPR), vacated the Board's January 2015 decision to the extent it denied entitlement to a rating greater than 10 percent from December 15, 2009 forward, and remanded the case for further action consistent with the terms of the JMPR. The Board's denial of a rating greater than 10 percent prior to December 15, 2009 was undisturbed and is no longer on appeal. In June 2016, the Board remanded the claim for further development in accordance with the terms of the JMPR. The Board remanded this claim again in May 2017 to arrange for a new VA examination that complied with Correia v. McDonald, 28 Vet. App. 158 (2016). An August 2016 rating decision granted service connection for instability of the right knee effective July 15, 2016, and assigned a rating of 20 percent. Service connection claims for disabilities of the left knee and low back were previously on appeal before the Board and remanded in May 2017. These claims were recently granted in an August 2017 rating decision, and thus no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets the delay, but this claim must be remanded again for further development, as specified below. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration. The Board finds that the Veteran's statements-as documented in the July 2016 and June 2017 VA examination reports-describing the severity of her right knee symptoms and functional impairment, require further commentary or assessment by the examiner. Specifically, according to the VA examination reports, the Veteran has denied flare-ups, but instead states that her right knee pain is constant, and generally an 8 out of 10 to a 10 out of 10 in severity. She states that she requires a cane and walker for ambulation, and sometimes a wheelchair. According to the June 2017 VA examination report, the Veteran stated that she could not sit or stand for more than a few yards without pain. According to the July 2016 VA examination report, the Veteran stated that she could not walk greater than 250 feet without stopping for rest, and could not sit, stand, or walk for prolonged periods of time. The examiner indicated that pain, weakness, fatigability, lack of endurance, and incoordination significantly limited functional ability with repeated use over time, without discussing whether range of motion would be more limited or providing an estimate of what such limitation would be. By contrast, the June 2017 VA examiner did not find that there would be further limitation on repeated use over time, even though the Veteran reported essentially the same symptoms and functional impairment that she described at the July 2016 VA examination. On examination the Veteran consistently has had flexion of the right knee to at least 85 degrees and extension to 0 degrees, including after repetitive testing. These ranges do not meet the criteria for even a compensable rating under the applicable diagnostic codes. See 38 C.F.R. §§ 4.71a, Diagnostic Codes (DC's) 5260, 5261 (2017). A May 2017 VA treatment record reflects that the Veteran had full range of motion of the right knee, both passive and active, with no instability or effusion. VA x-ray studies conducted in June 2015 and April 2017 showed minimal early degenerative changes. Nevertheless, the continuous severe pain described by the Veteran, her significantly limited functional use of the knee, and her reported need for constant use of a cane or walker for ambulation, and occasionally a wheelchair, would seem to indicate disability much more severe than that contemplated by the 10 percent rating currently assigned for her degenerative joint disease with painful motion. For example, the Board notes that a 60 percent rating is assigned for chronic residuals of a knee replacement consisting of severe painful motion or weakness. 38 C.F.R. § 4.71a, DC 5055. Although the Veteran has not undergone a knee replacement, her reported symptoms and functional impairment seem much more severe than what is contemplated by the 10 percent rating currently assigned for painful and limited motion, in light of DC 5055. The July 2016 and June 2017 VA examination reports note atrophy of the right knee compared with the left, which indicate that the Veteran uses the right knee less than the left. In order to aid the Board in making an informed decision, to include whether referral for a rating on an extraschedular basis may be warranted pursuant to 38 C.F.R. § 3.321(b) (2017), the VA examiner must comment on whether the Veteran's reported symptoms of constant severe pain and significant functional limitations are consistent with the objective findings, including the x-ray findings, range-of-motion tests, and atrophy. Given the fact that on examination, the Veteran's right knee has consistently had flexion to at least 85 degrees and extension to 0 degrees, including on repeat testing, it becomes all the more critical for the examiner to comment on whether these findings accurately describe the Veteran's disability when, for example, she states that she can only walk 250 feet before she needs to rest, and requires constant use of a cane or walker to ambulate. Accordingly, the case is REMANDED for the following action: 1. Add to the claims file any outstanding VA treatment records dated since May 2017. 2. Request the examiner who performed the June 2017 VA examination to provide an addendum opinion, as specified below. If an opinion cannot be obtained from that examiner within a reasonable time frame, the opinion may be rendered by a different medical doctor. As both the July 2016 and June 2017 VA examinations were performed by medical doctors, the examiner who provides the below opinion must also be a medical doctor to ensure consistency of expertise. The examiner is asked to review the July 2016 and June 2017 VA examination reports, as well as prior examination reports and any other pertinent evidence in the file. After reviewing these records, the examiner should comment on whether the Veteran's statements describing constant ("all the time") severe right knee pain that is an 8/10 to 10/10 in severity, her reported need for a walker or cane in order to ambulate, her reported inability to walk more than 250 feet without resting, and her reported inability to use stairs, are consistent with the objective findings, including range-of-motion testing results, muscle strength testing results, atrophy, x-ray studies, and prior MRI reports. If so, the examiner should provide an estimate of additional loss of range motion on repeated use over time in light of the Veteran's statements regarding functional limitations and constant severe pain. The examiner must provide complete explanations for all conclusions reached. 3. Then, after completing any other development that may be indicated, readjudicate the claim. If the benefits sought are not granted, the Veteran and her representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). _________________________________________________ P. M. DILORENZO 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).