Citation Nr: 1325929 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-16 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for upper back strain, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for right knee degenerative joint disease, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claims. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran asserted on his October 2010 notice of disagreement that he is entitled to higher ratings for his upper back and right knee disabilities due to the functional loss due to pain on movement pursuant to 38 C.F.R. § 4.40. At the Veteran's most recent VA examination for rating purposes in September 2010, the Veteran reported that he has flare-ups of his right knee as often as two times a week. He said that the flare-ups cause severe (level 9) pain and limitation of motion of the right knee joint, which will not bend well. At the September 2010 VA examination the Veteran also reported that he has flare-ups of his upper back. He stated that he cannot function when he has the flare-ups of back pain, and that he can barely move. Given the Veteran's complaints and as the September 2010 VA examiner did not address any additional functional impairment on flare-ups, the Veteran must be provided a new VA examination of the right knee and spine which includes discussion of and an estimation of the loss of motion of the right knee and upper back during flare-ups. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence (to include VA or non-VA medical records) pertinent to the claims on appeal that is not currently of record. 2. When the above action has been accomplished, afford the Veteran a VA examination to determine the current nature and severity of his right knee and upper back disabilities. The claims file should be made available for the examiner to review, and the examination report should indicate that this was accomplished. All indicated studies of the right knee and upper back, including range of motion studies in degrees, should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use and during flare-ups, and, to the extent possible, provide an assessment of any additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. With regard to the Veteran's right knee, the examiner should determine if there is any lateral instability or recurrent subluxation of the right knee. If so, the examiner should opine whether it is slight, moderate or severe. The examiner should determine if the right knee disability is manifested by locking and if so the frequency of the locking and any episodes of effusion into the joint. The examiner should indicate whether the Veteran's upper back disorder results in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should comment on whether there is any neurological abnormality associated with the upper back disorder, to include but not limited to bladder or bowel impairment. The supporting rationale for all opinions expressed should be provided. If an opinion cannot be provided without resorting to speculation, the examiner should provide a rationale for not being able to provide an opinion. 3. Ensure that the information and opinions provided by the examiner satisfies the criteria above and, if not, return the report as insufficient. Then readjudicate the Veteran's claims after ensuring that any other development deemed warranted is complete. If the benefits sought are not granted to the Veteran's satisfaction, the Veteran should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ S. S. TOTH 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) (2012).