Citation Nr: 0005710 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 94-32 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating for lumbosacral strain with degenerative changes and limitation of motion from 40 percent disabling. 2. Entitlement to an increased rating for right knee injury residuals and limitation of motion from 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, J. C. ATTORNEY FOR THE BOARD W. R. Steyn, Associate Counsel INTRODUCTION The veteran had active military service from July 1986 to April 1989. This appeal arises before the Board of Veterans' Appeals (Board) from a March 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, Columbia, South Carolina, which denied the veteran's claims seeking entitlement to an increased rating from 20 percent for lumbosacral strain with degenerative changes and limitation of motion, denied an increased rating for residuals of a right knee injury with limitation of motion from 10 percent, and denied a TDIU. By rating decision dated February 1999, the RO granted the veteran an increased rating to 40 percent for lumbosacral strain with degenerative changes and limitation of motion, effective September 6, 1995. By rating decision dated August 1999, the RO granted the veteran an earlier effective date for his 40 percent rating for lumbosacral stain with degenerative changes and limitation of motion to August 23, 1993. The veteran's claim was initially before the Board in October 1997, at which time it was remanded for additional development. At that time, the Board noted that in August 1996 the RO had informed the veteran of a proposed reduction to a noncompensable evaluation of his service-connected right knee disability. It was also noted that the veteran had disagreed with the proposed reduction. However, no further action was taken by the RO on this matter. By statement dated January 1998, the veteran asserted that he would like to appear before the traveling board in January in Huntington if possible. As the veteran was already afforded one hearing before a traveling member of the Board in May 1997, a letter was sent to the veteran in December 1999 giving him the opportunity to submit a motion to show cause why he should have another hearing. No reply was received from the veteran. REMAND The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. In October 1997, the Board remanded the veteran's claim for a number of reasons. One of the reasons was the need to have the RO obtain the veteran's Social Security Administration (SSA) records pertinent to his claim. In October and November 1997, the RO wrote to the SSA for a complete copy of the SSA file, including the medical evidence used and the decision awarding the veteran SSA benefits. The claims folder does not include a record of a reply from the SSA in the claims folder. In a letter received by the RO in January 1998, the veteran reported that he had received SSA benefits in the past, but was no longer receiving them. He also stated that he believed the claim could be decided without the SSA records. However, the claim must be decided on the basis of all reasonably available relevant records, included records pertaining to past SSA benefits. The Court has recently underscored the role of agencies of original jurisdiction in carrying out the instructions in Board Remands. As noted by the Court, the duties of the agencies of original jurisdiction in this regard are mandatory, and, furthermore, the Board of Veterans' Appeals is obligated to insure compliance with the instructions in Remands. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the veteran's claim must be remanded again so that the veteran's SSA file can be obtained, along with a copy of the SSA decision along with medical evidence considered in making such decision. Regarding the veteran's low back disability, in a recent General Counsel opinion, it was determined that Diagnostic Code 5293 for intervertebral disc syndrome involved loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve might cause limitation of motion of the spine. It was concluded that pursuant to Johnson v. Brown, 9 Vet. App. 7 (1996), 38 C.F.R. § § 4.40 and 4.45 must be considered when a disability is considered under Diagnostic Code 5293, even though the rating corresponds to the maximum rating under another Diagnostic Code pertaining to limitation of motion. See VAOPGCPREC 36- 97 (December 12, 1997). Since the veteran's low back disability is rated as 40 percent disabling under Diagnostic Code 5293 for intervertebral disc syndrome, 38 C.F.R. § § 4.40 and 4.45 must be considered when the RO rates the veteran's claim for an increased rating for a low back disability. Regarding the veteran's service-connected right knee disability, a recent opinion by the VA's Office of the General Counsel determined that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (July 1, 1997). In a subsequent opinion issued by the General Counsel, it was determined that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion the knee disability need not be compensable but must at least meet the criteria for a zero-percent rating. It was also determined that a separate rating for arthritis could be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. See VAOPGCPREC 09-98 (August 14, 1998). Pursuant to the General Counsel opinions at VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998), when the RO rates the veteran's knee disability, the RO must determine whether the veteran is entitled to separate ratings for arthritis and instability of the knee. For the reasons stated above, this case is REMANDED to the RO for the following actions: 1. The RO and any physician to whom this case is assigned for an examination and/or a statement of medical opinion must read the entire remand, to include the explanatory paragraphs above the numbered instructions. 2. The RO should obtain all relevant current medical records regarding the veteran's low back and right knee which are not yet of record. 3. The RO should contact the SSA and obtain a copy of their decision regarding the veteran's claim for disability benefits along with copies of all medical records considered by the SSA. 4. After the development requested above has been completed, the RO should review the veteran's claims folder and ensure that all the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action should be taken. 5. After the development requested above has been completed, the RO should readjudicate the appellant's claims for an increased rating for lumbosacral strain with degenerative changes and limitation of motion from 40 percent disabling with particular consideration of the provisions of 38 C.F.R. §§ 4.40, 4.45, as set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995) and VAOPGCPREC 36-97 (December 12, 1997). The RO should also readjudicate the veteran's claim for an increased rating for right knee injury residuals and limitation of motion from 10 percent disabling with particular consideration of the provisions of 38 C.F.R. §§ 4.40, 4.45, as set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). In so doing, the RO should consider whether the veteran is entitled to separate ratings for arthritis and instability of the knee and should also consider the Office of the General Counsel opinions VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). After the RO readjudicates the aforementioned claims, the RO should readjudicate the appellant's claim for a TDIU, taking all action necessary to satisfactorily adjudicate such claim. In the event that the claim on appeal is not resolved to the satisfaction of the appellant, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. G. H. SHUFELT Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).