Citation Nr: 0315723	
Decision Date: 07/11/03    Archive Date: 07/17/03

DOCKET NO.  97-34 752	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

Entitlement to an increased evaluation for internal 
derangement of the right knee, status post total knee 
replacement, currently evaluated as 30 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James A. Frost, Counsel




INTRODUCTION

The veteran served on active duty from June 1945 to November 
1952.

This appeal to the Board of Veterans' Appeals (Board) arises 
from a rating decision in  December 1996 by the Cleveland, 
Ohio, Regional Office (RO) of the Department of Veterans 
Affairs (VA).

In September 1999, the Board remanded this case to the RO for 
further development of the evidence.  While the case was in 
remand status, other claims on appeal were granted.  The case 
was returned to the Board in June 2003.


REMAND

Disability evaluations are determined by application of a 
schedule of ratings which is based on average impairment of 
earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
Part 4.  Separate diagnostic codes identify the various 
disabilities and the criteria for specific ratings.  
38 C.F.R. § 4.71a, Diagnostic Code 5055, pertaining to knee 
replacement (prosthesis), provides that a knee replacement 
with intermediate degrees of residual weakness, pain, or 
limitation of motion warrants a minimum rating of 30 percent.  
An evaluation of 60 percent requires knee replacement with 
chronic residuals consisting of severe painful motion or 
weakness in the affected extremity.

In the remand of September 1999, the Board directed that the 
veteran undergo a VA orthopedic examination of his right 
knee.  That examination was conducted in May 2002.  In the 
remand orders, the Board stated that, "The orthopedic 
examiner should also indicate whether the right knee exhibits 
weakened movement, excess fatigability, or incoordination."  
This requirement for the orthopedic examination was pursuant 
to 38 C.F.R. §§ 4.40, 4.45 (2002), pertaining to the factors 
to be considered in rating orthopedic disabilities.  In the 
report of the May 2002 orthopedic examination, the examiner 
stated that, "[The veteran] does express positive symptoms 
in that he does have excessive fatigability, incoordination, 
and weakened movement as a result of his right knee, left 
knee, and right hip."  The Board notes that the examiner 
appears to have been recording a history provided by the 
veteran concerning his bilateral knees and right hip rather 
than making a clinical finding on the medical issue of 
whether the veteran's right knee exhibits weakened movement, 
excess fatigability, or incoordination, as directed by the 
Board's remand of September 1999.  The United States Court of 
Appeals for Veterans Claims has held that a remand by the 
Board confers on the claimant, as a matter of law, the right 
to compliance with the remand orders.  See Stegall v. West, 
11 Vet. App. 268, 271 (1998).  Because the Board's remand 
order set forth above has not been complied with in full, 
this case must be again remanded for the purpose of obtaining 
the requested medical information.

Under the circumstances, this case is remanded for the 
following.

1.  The examiner who conducted the May 
2002 VA orthopedic examination, if he is 
available, should be requested to prepare 
an addendum to his report and state 
whether or not he made a clinical finding 
that the veteran's right knee exhibits 
weakened movement, excess fatigability, 
or incoordination.

2.  If the physician who conducted the 
May 2002 examination is not available, 
another orthopedic examination of the 
veteran should be scheduled.  The 
examiner should be requested to make 
findings as to the severity of the 
veteran's right knee disability and, 
specifically, whether the veteran's 
internal derangement of the right knee, 
status post total knee replacement, is 
manifested by severe painful motion or 
weakness in the veteran's right lower 
extremity.

Following completion of these actions, the RO should review 
the evidence and determine whether the veteran's claim may 
now be granted.  If the decision remains adverse to the 
veteran, he and his representative should be provided with an 
appropriate Supplemental Statement of the Case (SSOC) and an 
opportunity to respond thereto.  The SSOC should notify the 
veteran of any information, and any medical or lay evidence 
not previously provided to VA which is necessary to 
substantiate the claim and whether VA or the claimant is 
expected to obtain any such evidence, in order to satisfy 
VA's duty to notify the veteran under the provisions of the 
Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5103, 
5103A (West 2002).  The case should then be returned to the 
Board for further appellate consideration, if otherwise in 
order.  The purposes of this REMAND are to assist the veteran 
and to obtain clarifying medical information.  By this 
REMAND, the Board intimates no opinion as to the ultimate 
disposition of the appeal.  No action is required of the 
veteran until he receives further notice.
 
The appellant has the right to submit additional evidence and 
argument on the matter which the Board has remanded to the 
RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


	                  
_________________________________________________
	F. Judge Flowers
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), 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) (2002).





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