Citation Nr: 1330285 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 08-23 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease with painful motion. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to July 1989. A period of in excess of four months prior active duty is also reported. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Indianapolis, Indiana. In a May 2012 decision, the Board denied a rating in excess of 10 percent for left knee varus/valgus instability, residual of left knee injury, denied a rating in excess of 10 percent for left knee degenerative joint disease with painful motion, and remanded the issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) for further development. The Veteran appealed the May 2012 Board decision denying the claim of entitlement to a rating in excess of 10 percent for left knee degenerative joint disease with painful motion to the United States Court of Appeals for Veterans Claims (Court). In February 2013, the Court issued an order granting a February 2013 Joint Motion for Remand. The Joint Motion for Remand specifically noted that the portion of the Board's May 2012 decision that denied a rating in excess of 10 percent for varus/valgus instability of the left knee should not be disturbed. The Joint Motion for Remand also noted that because the Board had remanded the TDIU claim, the Court did not have jurisdiction over this issue. The Order served to vacate and remand the Veteran's claim of entitlement to a rating in excess of 10 percent for left knee degenerative joint disease with painful motion to the Board for action in compliance with the Joint Motion for remand. The Board notes that the May 2012 remand directives regarding the claim of entitlement to a TDIU, do not appear to have been accomplished, and that issue has not been recertified to the Board. As such, it is not currently before the Board. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. Current review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such examination is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Joint Motion for Remand indicates that the March 2009 VA examination is not adequate for rating purposes because the examiner failed to address range of motion lost due to pain or functional loss due to flare-ups. The Joint Motion for Remand pointed out that in Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court determined that the examination provided to the appellant was inadequate because although the examiner addressed range of motion after repetitive use and noted that the appellant had pain during range of motion, the examiner made no initial finding as to the degree of range of motion loss due to pain on use, and the examiner failed to discuss whether any functional loss was attributable to pain during flare-ups. The Joint Motion for Remand directs that the Veteran should be provided a new examination which provides this information or explains why providing this information is not feasible. Therefore, a remand is required so that a new VA examination should be scheduled. Because the record reflects that the Veteran receives treatment for his left knee degenerative joint disease through VA, and the most recent VA treatment records in the claims file are dated in June 2009, up-to-date VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the Veteran's VA treatment records dating from June 2009 to the present, and associate them with the claims file. 2. Thereafter, schedule the Veteran for a VA joints examination to determine the current severity of his service-connected left knee degenerative joint disease with painful motion. The claims file and a copy of this Remand must be provided to the examiner and reviewed in conjunction with the examination. Any appropriate diagnostic testing, to include X-rays or magnetic resonant imaging tests (MRIs) should be conducted. * All ranges of motion of the left knee should be tested and reported in degrees. * The examiner should note, in degrees, if repeated range of motion testing results in additional limitation of motion, or in additional functional loss. * The examiner must also note the degree(s) of additional range of motion loss, or favorable or unfavorable ankylosis, due to pain on use and during flare-ups. * If there is functional loss as a result of weakened movement, excess fatigability, or incoordination in the left knee, the examiner should express the degree of additional range of motion loss, or favorable or unfavorable ankylosis, due to any weakened movement, excess fatigability, or incoordination. A complete rationale for all opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims file. 3. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. Thereafter, the RO/AMC should review the expanded record and readjudicate the issue on appeal. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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 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). _________________________________________________ U. R. POWELL 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).