Citation Nr: 1629381 Decision Date: 07/22/16 Archive Date: 08/01/16 DOCKET NO. 08-35 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from March 1966 to February 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). In an October 2010 rating decision, the RO awarded a temporary total evaluation for the Veteran's right knee from April 6, 2010, to July 10, 2010, for a period of convalescence following surgery. In November 2014, the Board denied the Veteran's claim. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). In September 2015, pursuant to a Joint Motion for Remand (JMR), dated that same month, the Court remanded the issue back to the Board for readjudication. The Board has reviewed and considered all of the records contained in the paper file and in the Veteran's electronic file in Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks an increased disability rating for the service-connected DJD of the right knee. A September 2015 JMR noted that the Board erred in failing to adequately address whether a higher disability rating was warranted due to the Veteran's reported flare-ups and an inability to perform repetitive testing. The JMR noted that at a July 2012 VA examination, the Veteran reported that he had flare-ups that impacted his knee and he was unable to perform repetitive motion due to pain. It was noted that the examiner indicated there was additional limitation of motion or functional loss/impairment due to pain on movement, less movement than normal, and weakened movement. The examiner, however, did not quantify additional functional loss due to pain on flare-ups in terms of degrees of motion lost or offer an opinion as to whether weakened movement and pain could significantly limit functional ability during flare-ups. The JMR stated that a remand was necessary for readjudication of the claim. The Board finds that a new VA examination is needed prior to the adjudication of the claim. A VA examiner should attempt to quantify the functional loss during flare-ups and due to weakened movement after repetitive use in terms of degrees of range of motion lost. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his right knee disability. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. Moreover, the examiner should be given access to the Veteran's electronic file and the records contained therein should be reviewed. The examiner must state in the examination report that a review of the file was completed. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should comment as to whether the Veteran's right knee disability exhibits weakened movement, excess fatigability, incoordination, or pain on use attributable to his service-connected disability. If so, the examiner should note whether there is any additional functional limitation resulting therefrom, and if so, it should be expressed in terms of additional degrees of limitation of motion to the extent possible. Also, if right knee flare-ups are noted, the examiner should likewise note whether there is any additional functional limitation resulting therefrom, and if so, it should be expressed in terms of additional degrees of limitation of motion to the extent possible. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge, or whether there is unknowable information that would be required. In other words, simply stating that an opinion cannot be made without resort to mere speculation is not acceptable without a detailed explanation as to why this is so. The examiner should also address the effect of the Veteran's right knee disability (alone) on his activities of daily living and occupational functioning. 2. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further 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 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 2014). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).