Citation Nr: 1807056 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-09 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Entitlement to an increased disability rating in excess of 20 percent for service connected patellofemoral pain syndrome of the left knee. 2. Entitlement to an increased disability rating in excess of 10 percent for service-connected limitation of flexion of the left knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Pendleton, Associate Counsel INTRODUCTION The Veteran has active duty service from January 1996 to December 1999. This appeal comes before the Board of Veteran's Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. She is currently assigned a 20 percent disability rating under Diagnostic Code (DC) 5257 based on moderate instability and objective evidence of synovitis. The Veteran elected to waive her right to a hearing in February 2012. The matter was previously remanded for an adequate VA examination in September 2016 based on an allegation of worsening since her last examination. The Veteran underwent said examination in October 2016. Therefore, there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). However, further action is still required to fulfill the Agency's duty to assist the Veteran in her appeal. During the pendency of the appeal, the RO assigned a separate 10 percent disability evaluation for limitation of flexion of the left knee. The rating was effective October 13, 2016. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In this case, the Veteran seeks a supplemental examination to test her left knee stability because she was unable to complete the stability testing portion of the October 2016 examination on remand due to an acute fracture from a fall in September 2016. A review of the pertinent evidence in light of the governing authority supports the finding that the matter must be remanded for a supplemental VA examination. The October 2016 VA examination report confirms stability testing portion was not conducted due to an acute fracture undergoing current treatment as well as signs of joint effusion and pain on minimal range of motion. Treatment notes from October 2016 corroborate the Veteran's statements of a re-injury in September 2016. X-ray of the Veteran's left knee in September 2016 showed small joint effusion. In a follow-up appointment, medical resonance imaging (MRI) of the left knee indicated mildly displaced vertical fracture on the lateral patella with moderate surrounding marrow edema in the patella compatible with contusion. She had moderate joint effusion, mild focal tendinopathy was suspected at the insertion of the patellar tendon, and also had moderate adjacent soft tissue contusion. To treat her disability, the Veteran underwent nine (9) sessions of physical therapy between September 2016 and November 2016, where she consistently displayed pain, rated as 7 to 8 on a 10-point scale on examination. She also displayed decreased range of motion and weakness of her left knee. She was guarded throughout each evaluation. She required an assistive device for ambulation, but was capable of proper ambulation with crutches to avoid axilla compression. More pertinently, it appears that the Veteran has recovered and is capable of performing the stability test now. During November 2016 physical therapy visits the Veteran explained that her knee improved or at least stabilized. She stated she continued to have moderate left knee pain and was unable to put weight on the knee due to decreased overall strength. However, during her final physical therapy session, she stated that she could climb stairs, with pain, and was capable of heel-to-toe walking now. The Veteran failed to return to physical therapy after her November 29, 2016 visit. In addition, during the October 2016 examination, the examiner determined that the left knee resulted in reduced muscle strength. However, physical examination findings concerning the degree of lost muscle strength were not recorded. Rather, while muscle strength for the right knee was described as "5/5", muscle strength for the left knee was recorded as " /5." As such, the Board grants the Veteran's request for an additional VA examination and opinion as both are necessary to adjudicate the claim. The status of the Veteran's left knee instability must be determined. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with the appropriate examiner for the purposes of obtaining an opinion as to the status, current manifestations and severity of the Veteran's service-connected left knee disability. Range of motion testing should also be undertaken for the left and right knee. The examiner is to report the range of motion measurements in degrees. Range of motion should be tested actively and passively, in weight bearing and non-weight bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss to any of the following: (1) during flare-ups; and (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. a. The examiner should describe whether the left knee results in recurrent subluxation or lateral instability. b. The examiner is also asked to discuss whether any recurrent subluxation or lateral instability have/hase worsened, improved, or remained the same since the initiation of this appeal in 2009. Why do you say so? Although the examiner must review the entire claim file, his/her attention is directed to the following evidence: i. October 2016 medical treatment records reflects the Veteran had a recent injury from a fall in September 2016. X-ray of her left knee indicated small joint effusion. MRI of her left knee showed a mildly displaced vertical fracture on the lateral patella with moderate surrounding marrow edema in the patella compatible with contusion. She had moderate joint effusion and mild focal tendinopathy was suspected at the insertion of the patellar tendon. She also had moderate adjacent soft tissue contusion. Subsequently, the Veteran underwent nine (9) physical therapy sessions. By her last session, on November 29, 2016, she was capable of heel-to-toe walking. 2. Then, re-adjudicate the issue on appeal. If the benefits are not granted, furnish the Veteran and his representative a SSOC, and afford them an opportunity to respond. Then, return the case to the Board for appellate review. The appellant 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. The law requires that all claims that is 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 (7). _________________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.§ 7252 (2017) 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).