Citation Nr: 1633367 Decision Date: 08/23/16 Archive Date: 08/31/16 DOCKET NO. 09-15 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for an eye disability. 2. Entitlement to an initial rating in excess of 10 percent prior to February 18, 2009 for a right knee disability. 3. Entitlement to a rating in excess of 30 percent from April 1, 2010 for a right knee disability. 4. Entitlement to a rating in excess of 30 percent from January 1, 2011 for a left knee disability. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from March 31, 1982 to August 20, 1982, and from December 6, 1990 to April 6, 1991 with additional service indicated in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The undersigned Veterans Law Judge held a hearing with the Veteran in March 2010 at a Travel Board hearing at the RO. The transcript of this proceeding has been associated with the claims file. In an October 2008 rating decision, service connection was denied for an eye disability, and service connection was granted for right knee osteoarthritis and left knee osteoarthritis, rated separately 10 percent disabling, effective October 23, 2007. A notice of disagreement was filed in February 2009, a statement of the case was issued in March 2009, and a substantive appeal was received in April 2009. A February 2009 rating decision awarded a total rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2010) due to right knee replacement, from February 18, 2009, through March 31, 2010, and assigned a 30 percent disability rating to the right knee from April 1, 2010. A February 2010 rating decision awarded a total rating pursuant to § 4.71a, Diagnostic Code 5055 due to left knee replacement, from November 3, 2009, through December 31, 2010, and assigned a 30 percent disability rating from January 1, 2011. In February 2011, the Board denied the Veteran's claims for service connection for an eye disorder and a dental disorder; denied an increased initial rating for a right knee disability prior to February 18, 2009; and remanded the Veteran's claims for a rating in excess of 30 percent from April 1, 2010 for a right knee disability and entitlement to a rating in excess of 30 percent from January 1, 2011 for a for left knee disability. The Veteran's claims for service connection for an eye disorder and an increased initial rating for a right knee disability prior to February 18, 2009 were subject to a Joint Motion for Remand (JMR) in November 2015. The remanded claims, a rating in excess of 30 percent from April 1, 2010 for a right knee disability and entitlement to a rating in excess of 30 percent from January 1, 2011 for a left knee disability, have been returned to the Board for further appellate adjudication. The issues of entitlement to service connection for eye disability; entitlement to a rating in excess of 30 percent from April 1, 2010 for a right knee disability; entitlement to a rating in excess of 30 percent from January 1, 2011 for a left knee disability; and entitlement to a TDIU are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. Prior to February 18, 2009, the Veteran's right knee disability was manifested by x-ray evidence of arthritis and limitation of flexion to 85 degrees, and limitation of extension to 5 degrees. 2. Prior to February 18, 2009, the preponderance of the evidence is against a finding that the Veteran had instability or recurrent subluxation of the right knee. CONCLUSION OF LAW For the period prior to February 18, 2009, the criteria for a schedular rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5003-5260 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Under the VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2014). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a) , must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In November 2007 and February 2008, VCAA letters were issued to the Veteran with regard to his underlying service connection claims. Such letters predated the initial October 2008 rating decision. Since the bilateral knee appellate issues in this case (entitlement to assignment of higher initial ratings) is a downstream issue from that of service connection (for which the November 2007 VCAA letter was duly sent), another VCAA notice is not required. VAOPGCPREC 8- 2003 (Dec. 22, 2003). The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and notice as to the types of evidence necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's service treatment records, post-service VA and private medical records, and lay statements and testimony of the Veteran. There is no indication of relevant, outstanding records which would support the Veteran's claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Regulations and Analysis Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5262, pertaining to "impairment of tibia and fibula," a 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating contemplates malunion with moderate knee or ankle disability, and a 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion, requiring brace. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August 1998). Moreover, the General Counsel also held more recently that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 2004). As detailed, service connection was established for right knee osteoarthritis effective October 23, 2007. A total rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055 due to right knee replacement was established from February 18, 2009, through March 31, 2010. As indicated in the introduction, the Board will address entitlement to a schedular rating in excess of 10 percent for a right knee disability prior to February 18, 2009 only herein. An August 2007 x-ray examination of the knees showed mild medial compartment narrowing, and mild tricompartmental osteoarthritis, mild lateral patellar subluxation, and no joint effusion in the right knee. The impression was mild bilateral medial compartmental narrowing with tricompartmental osteoarthritis. In September 2007, the Veteran underwent an MRI of the knees. The impression with regard to the right knee was moderate to severe tricompartmental osteoarthritis; undersurface tear of the posterior horn of the medial meniscus; mucoid change within the anterior horn of the medial meniscus. The assessment was knee pain bilaterally with moderately-severe tricompartmental osteoarthritis and ligament tears. In September 2007, the Veteran sought urgent VA care for knee pain. He stated that he really needed disability and that his knees really hurt at his job. He stated that he has to stand 8 to 16 hours at his job and his knees hurt which result in thigh and calf pain. The examiner observed that the Veteran was obese and had a slight limp with walking/guarding left knee. The assessment was muscle cramping with knee pain and obesity. In October 2007, the Veteran sought treatment complaining of bilateral knee pain for years. He stated that the pain in the knee limits most activity and he is frustrated with the noticeable weight gain that has come with it. He was employed as a nurse and stated that working 8 hours with constant walking exacerbates the pain. On examination, active range of motion was within normal limits bilaterally in the knees. Light touch was present and equal bilaterally in the lower extremities without paresthesias currently. There was no significant pain with palpation bilaterally. Anterior drawer, posterior drawer, varus stress, valgus stress, and McMurray's test were all negative. The signs and symptoms were consistent with bilateral knee osteoarthritis. In January 2008, the Veteran sought private treatment referred by the VA. Physical examination of the knees was virtually identical. There was medial joint line tenderness, pain to circumduction maneuvers, no varus or valgus laxity and no sagittal laxity. There was full range of motion, grade 5 quad and hamstring strength. X-rays showed 3-5 millimeter of joint space remaining on Rosenberg views with some degenerative changes in both the medial tibiofemoral and patellofemoral joint. The assessment was degenerative knees with chronic medial meniscal tears. On May 12, 2008, the Veteran underwent bilateral arthroscopic medial meniscectomy and bilateral bicompartmental chondroplasty. The postoperative diagnosis was bilateral degenerative knees with bilateral medial meniscal tears. In July 2008, the Veteran still reported pain and stated that the arthroscopy did not help. Prior to the arthroscopy he could not pinpoint the pain, but after the arthroscopy he felt the pain was distal to the patella bilaterally. On musculoskeletal examination, there was guarding to knees with position changes and ambulation. He had a steady gait. He was referred for physical therapy for muscle strengthening and stretches. X-ray examination was repeated which showed severe tricompartmental osteoarthritis with no evidence of acute fracture or dislocation; however, there was mild lateral subluxation of the right patella. In August 2008, the Veteran underwent a VA examination. He reported that he injured his knees in 1995 and underwent surgeries that same year. He reinjured his knees in 1999. The Veteran reported constant bilateral knee pain, reported as 7/10, with intermittent cramping happening at night almost every night, aggravated by walking or doing "anything." He stated that on stairs he could not bend his knees, he had to go down sideways and it was particularly painful getting up from a seated position or sitting from a standing position. He had weekly instant flares of 9/10, at times with a duration of 10 minutes. His general pain was alleviated with hydrocodone which he took every four hours and he was to begin physical therapy. He lived in a house and was able to care for himself. He did not do anything outdoors anymore and his wife pretty much was "doing all that." Indoors he could help maybe five minutes of standing at most for washing dishes and cooking. He last worked in 2003 as a nurse but was having problems with his knees. He reported pain with bending and kneeling and extended walking. On physical examination, his posture and gait were abnormal. He had a moderate antalgic gait, walking gingerly side-to-side from his knees with a slight hip hike as he did not flex his knees well. When observed walking down the hall, he leaned heavily on the hall railing. He did not use or need any assistive or corrective devices however to ambulate. Physical examination of the knees demonstrated no erythema or edema; however, he had medial and lateral tibial plateau deformity to palpation. He was quite guarded with musculature causing difficulty in performing valgus, varus, and anterior drawer testing. His knees overall appeared stable from testing that could be done. McMurray's was essentially negative, although he had crepitus with flexion and extension of the knee. On the right, he had an extension lag of 5 degrees. He was not able to get to zero and reported pain with further attempts to get to zero at the end range. He had pain throughout motion to 85 degrees of flexion, worsening at the end range, and goes no further. His strength was 4/5 secondary to pain. Sensory was normal. Reflexes were zero bilaterally. Except where noted, there was no change in active or passive range of motion during repeat motion testing and no additional losses of range of motion in the involved joints due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups. The examiner diagnosed bilateral severe tricompartmental osteoarthritis of the knees. The above constitutes the medical evidence on file for the above periods in question. The RO assigned separate 10 percent ratings in light of the objective findings of osteoarthritis and limitation of motion pursuant to Diagnostic Codes 5003 and 5260. Based on the objective findings reflected hereinabove, as detailed x-ray examination conducted in August 2007 and an MRI conducted in September 2007 reflects tricompartmental osteoarthritis of both knees. In light of such objective findings of arthritis, a 10 percent ratings is warranted pursuant to Diagnostic Code 5003. Degenerative arthritis is rated in consideration of limitation of motion, thus the Board has determined whether a higher rating would be warranted under the range of motion criteria. The limitation of flexion reflected in the August 2008 VA examination report is noncompensable (flexion limited to 85 degrees in the right knee) and the limitation of extension is noncompensable in the right knee (extension limited to 5 degrees). Thus, per Diagnostic Code 5003, a 10 percent rating is warranted for the right knee based on the x-ray findings of degenerative arthritis but noncompensable limitation of motion. According to a General Counsel opinion, separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004). However, in the present case there is no evidence that a compensable rating is warranted under the criteria of Diagnostic Codes 5260 and 5261 with regard to the right knee. The Board has given consideration as to whether a separate rating would be warranted pursuant to Diagnostic Code 5257, for slight recurrent subluxation and lateral instability. However, the preponderance of objective evidence to include in-person examination does not reflect current symptoms of instability or subluxation. While acknowledging the x-ray reports of August 2007 and July 2008 which reflected mild lateral patellar subluxation in the right knee, in-person testing of the Veteran by medical professionals has not shown symptomatology consistent with recurrent subluxation or instability. As detailed, on examination his knees overall appeared stable on testing in August 2008, and McMurray's testing was negative. The Board finds that a higher rating is not warranted under any alternative provision. Diagnostic Code 5256 provides for a higher rating, however, application of this code is inappropriate as there is no diagnosis of ankylosis of the knees. Furthermore, the Veteran may not be rated by analogy to this code as he did not suffer functional immobility of the knees for this period. Likewise, Diagnostic Codes 5258 and 5259 do not provide for higher disability ratings, and are inapplicable. Additionally, there are no objective findings of impairment of the tibia and fibula, thus there is no basis for disability ratings under Diagnostic 5262. The Board has considered 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. DeLuca, 8 Vet. App. at 206-07. However, an additional "symbolic" range of motion loss for pain, excess fatigability, decreased functional ability, etc. is not warranted. As detailed, the August 2008 VA examiner specifically stated that there was no additional functional loss due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups. Based on the above, the Board has determined that a schedular rating in excess of 10 percent for the right knee is not warranted for the period prior to February 18, 2009. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran provided statements indicating that the symptomatology associated with the lumbar myositis is severe. The Board also finds the severity of the Veteran's service-connected knee disability is fully contemplated by the rating criteria. There is nothing exceptional about the Veteran's service-connected disability. The degree of disability exhibited is contemplated by the rating schedule. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the evidence reflects that his symptoms have remained relatively constant throughout the course of the period on appeal and prior to the total right knee replacement, as such, additional staged ratings are not warranted. ORDER An increased initial rating for right knee disability, currently characterized as status post right knee total arthroplasty, for the period prior to February 18, 2009, is denied. REMAND The JMR, noted in the introduction, indicates that the previous Board decision did not consider all of the Veteran's diagnoses of an eye disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The JMR noted diagnoses of nuclear sclerosis cataract and posterior vitreous detachment by Dr. Tanner at the VA Medical Center in February 2010. A March 2016 private treatment note indicates assessment of keratoconjunctis sicca, nonexudative age-related macular degeneration, bilateral hypermetropia and presbyopia. The Board notes that there is no indication of eye injury, or treatment or diagnosis during a period of active duty, contained in the Veteran's service treatment records. However, the authorization for the private treatment indicates that the Veteran was seen in February 2016 at the VA for eye treatment. Thus, the Board must remand for association of updated VA medical records as well as consideration by the AOJ of the diagnoses of record since the most recent adjudication (in a January 2010 supplemental statement of the case) of the claim. Concerning the Veteran's claims for increased ratings for his bilateral knee disabilities, an Informal Hearing Presentation dated March 2016 indicates that the most recent VA examination is insufficient as he was not assessed for flare-ups which he maintains result in additional functional loss of movement and motion with locking and instability. However, according to the text in the examination report, the Veteran indicated that he had no flare-ups at that time. The Board additionally notes that there is no indication in the examination report concerning additional loss of range of motion due to pain or any indication of active versus passive range of motion. The Veteran is entitled to a new VA examination when there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995). The Veteran's most recent examination was conducted in October 2015, and the evidence indicates that his disability has worsened in severity. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (the Veteran is competent to provide an opinion that his disability has worsened). Thus, a new examination must be afforded to consider the current severity of the Veteran's bilateral knee disability. The Board notes that in June 2014 the Veteran filed a claim for TDIU. A November 2014 rating decision denied the Veteran's claim for TDIU. As the Veteran asserts that he is unemployable as a result of the service-connected issues on appeal, TDIU is considered "part and parcel" of the underlying claims. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) ("it is clear from our jurisprudence that an initial claim for benefits for a particular disability might also include an assertion of entitlement to TDIU based on that disability"). Thus, this issue is inextricably intertwined with the increased rating issues on appeal and must be addressed by the RO. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment 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. The Veteran's treatment records from the Salt Lake City VAMC for the period February 2, 2016, to the present, should be associated with the claims folder. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. The Veteran should be afforded an orthopedic examination to determine the current severity of his status post bilateral knee replacements. All studies deemed necessary should be performed. The examiner should undertake range of motion studies of the knee, noting the exact measurements for flexion and extension, specifically identifying any excursion of motion accompanied by pain. The examiner should identify any objective evidence of pain and attempt to assess the extent of any pain. The examiner should specify the degree of pain and weakness from the knee replacements (slight, moderate, severe). Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner should also express an opinion concerning whether there would be additional limits of functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. The examiner should provide an opinion concerning the degree of severity of any instability or subluxation of the knee. The examiner should also determine if the knees lock and if so the frequency of the locking. The examiner should comment on the presence of any severe painful motion or weakness in the knees. If the examiner is not able to provide any of the findings detailed above, a complete explanation as to why such findings cannot be made must be delineated. 3. After completion of the above, the RO should review the entirety of the record and readjudicate the issues on appeal. If the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. No action is required of the Veteran until notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in denial of the claim. 38 C.F.R. § 3.655 (2015). The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs