Citation Nr: 1633186 Decision Date: 08/22/16 Archive Date: 08/26/16 DOCKET NO. 08-30 121A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals of right knee medial meniscal tear with chondromalacia patellae. 2. Entitlement to an initial rating in excess of 10 percent for residuals of left knee medial meniscal tear with chondromalacia patellae, excluding the period from June 9, 2008, through July 31, 2008, during which time the Veteran was in receipt of a temporary total rating based on a period of convalescence following left knee surgery. 3. Entitlement to an initial rating in excess of 10 percent for left knee instability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from August 1986 to August 1990 and from August 2006 to June 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board remanded this case in July 2010 and September 2014. In June 2010, the Veteran testified at a hearing before one of the Board's Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. In an April 2016 letter, VA informed the Veteran that the Veterans Law Judge who conducted the June 2010 hearing is currently unavailable to participate in a decision on his appeal. The letter further informed the Veteran that 38 U.S.C.A. § 7107(c) (West 2014) and 38 C.F.R. § 20.707 (2015) provide that the Veterans Law Judge who conducts a hearing on appeal must participate in a decision made on that appeal and, therefore, the Veteran has a right to request another optional Board hearing before a different Veterans Law Judge. The letter instructed the Veteran to respond within 30 days from the date of the letter and that, if he did not respond within 30 days from the date of the letter, the Board would assume that he does not want another hearing and would proceed accordingly. Greater than 30 days have now elapsed since the date of the April 2016 letter, and the Veteran has not indicated that he wishes to have a hearing before a different Veterans Law Judge. Therefore, the Board will proceed with appellate consideration. The record reflects that an August 2014 rating decision granted the Veteran entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. The Veteran did not appeal any aspect of that decision, to include the effective date assigned for the grant of a TDIU. Therefore, the issue of entitlement to a TDIU is not currently on appeal as part of the claims for higher ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. §§ 20.200, 20.201, 20.302. In the Introduction to its September 2014 remand, the Board noted that the record then currently before the Board consisted of paper claims files and electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). Since issuance of that remand, the Veteran's claims file has been converted to be completely electronic. Therefore, the record before the Board at this time consists of only electronic records contained in Virtual VA and VBMS. The Board notes that additional evidence was associated with the record following issuance of the most recent supplemental statement of the case in February 2015, to include additional VA treatment records, and that the Veteran did not waive agency of original jurisdiction (AOJ) consideration of the additional evidence. See 38 C.F.R. § 20.1304. However, because the case must be remanded for additional development, the AOJ will have an opportunity to consider the additional evidence in the first instance when it readjudicates the claim following completion of the additional development. The appeal is REMANDED to the Agency of Original Jurisdiction AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that these matters must be remanded for further development before a decision may be made on the merits. The Veteran was most recently provided a VA examination as to the service-connected knee disabilities in January 2015. The report for that examination includes range-of-motion measurements for the Veteran's bilateral knees, to include descriptions of the effect of pain on the Veteran's functioning and whether the Veteran has additional functional loss following repetitive use of the knees. The examination report reflects that the Veteran did not exhibit pain with weight-bearing in either knee. In addition, no pain was noted on examination of the right knee, and the examiner opined that, although pain was noted on examination of the left knee, the pain does not result in or cause functional loss. However, the report does not specify whether the range-of-motion measurements were taken on active motion, on passive motion, on weight-bearing, and/or on nonweight-bearing. In addition, the examiner did not indicate that he was unable to perform range-of-motion testing on active, passive, weight-bearing, or nonweight-bearing or that such testing was not necessary. Therefore, the examination report does not make clear the extent to which pain affects the Veteran's passive, active, weight-bearing, and nonweight-bearing motion. In that regard, the Board observes that a new precedential opinion that directly impacts this case was issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, ___Vet. App.___, No. 13-3238, 2016 WL 3591858 (July 5, 2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range-of-motion testing be conducted whenever possible in cases of joint disabilities. The final sentence of that section provides, in relevant part, that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing . . . ." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range-of-motion testing described in the final sentence of § 4.59. Here, the January 2015 VA examination report does not comply with Correia because it does not include range-of-motion testing on active, passive, weight-bearing, and nonweight-bearing or a statement to the effect that such testing was not possible or unnecessary in this case, such that the effects of pain on the Veteran's functioning may adequately be assessed under the provisions of 38 C.F.R. § 4.59. Accordingly, the Veteran must be afforded a new VA knee examination that complies with Correia and includes all necessary information in view of 38 C.F.R. § 4.59. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA knee examination to determine the current nature and severity of his service-connected disabilities of the bilateral knees. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to those service-connected disabilities. The record and a copy of this Remand must be made available to and reviewed by the examiner. The examiner must address the following: a) Pursuant to Correia v. McDonald, ___Vet. App. ___, No. 13-3238, 2016 WL 3591858 (July 5, 2016), and 38 C.F.R. § 4.59 (2015), the examination should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the bilateral knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examination results should be recorded using VA Form 21-0960M-9, May 2013, Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ), or a more recent revision of that DBQ, if possible. In recording the ranges of motion for the Veteran's bilateral knees, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. The examiner should also indicate whether the Veteran experiences additional functional loss during flare-ups of the service-connected lumbar spine disability. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. b) The examiner should also express an opinion concerning whether there would be 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. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner must note that the record was reviewed. The examiner must provide a complete rationale for any opinion expressed. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether the benefits sought may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. 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 2014). _________________________________________________ MICHAEL MARTIN 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).