Citation Nr: 1635776 Decision Date: 09/13/16 Archive Date: 09/20/16 DOCKET NO. 09-02 259 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for a service-connected left knee disability manifested by subluxation. 2. Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served in the Army National Guard (ARNG) with an initial period of active duty for training from March 28, 1976, to July 16, 1976, and additional periods of reserve service. This case has a lengthy procedural history and came before the Board of Veterans' Appeals (Board) on appeal from a January 2007 RO decision. In June 2011, the Veteran testified at a videoconference before a Veterans Law Judge (VLJ) of the Board. A transcript of that hearing is associated with the claims file. Thereafter, in July 2015, the Veteran was informed of the fact that the VLJ who previously heard his case was no longer employed by the Board, and he was offered the opportunity to testify at another hearing before the VLJ who will decide his case. See 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. However, he declined and requested that the Board consider the case on the evidence of record. In an October 2011 decision, in pertinent part, the Board denied the claims on appeal. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 joint motion for partial remand (JMPR), the parties (the Veteran and the Secretary of VA) requested that the Board decision be vacated as to the issues of entitlement to increased ratings for the service-connected left knee disability, and the issues remanded. In a July 2012 Court order, the joint motion was granted, the Board's October 2011 decision was vacated only as to these two issues, and the issues were remanded. The appeal as to the other issues was dismissed. The case was subsequently returned to the Board. In January 2013, the Board remanded the issues to the Agency of Original Jurisdiction (AOJ) for additional development consistent with the JMPR, including a VA examination, and the case was subsequently returned to the Board. In an August 2013 decision, the Board denied the Veteran's claims and the Veteran again appealed to the Court. In a February 2015 memorandum decision, the Court vacated the Board's August 2013 decision and remanded the claims. In November 2015, the Board remanded this case to the AOJ for additional development, and the case was subsequently returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claims. In its February 2015 memorandum decision, the Court stated that since it was unclear from its review of the Board's August 2013 decision and the March 2013 VA opinion and subsequent addendum whether the VA examiner reviewed the VA medical records specifically referenced in the Board's January 2013 remand, the Board failed to ensure compliance with its prior remand. The Court also determined that the Board erred in finding the March 2013 VA opinion adequate. The Court vacated the August 2013 Board decision and remanded the matter for a new VA medical opinion or examination of the service-connected left knee disabilities. The Court added that "In addition to being based on review of the above-mentioned medical records, on remand, the VA medical opinion or examination shall comply with 38 C.F.R. § 4.59 and provide any other range of motion testing necessary to provide an adequate opinion regarding the Veteran's service-connected left knee disability." The Board then remanded this case to the AOJ in November 2015 to obtain additional medical records and the Veteran's records from the Social Security Administration (SSA), and for another VA examination of the Veteran's left knee disability, with a review of the claims file by the examiner prior to the examination. The Board's remand instructions also indicated that the VA medical opinion or examination must comply with 38 C.F.R. § 4.59 and provide any other range of motion testing necessary to provide an adequate opinion. The Board notes that in a recent decision, the Court held 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. See Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). In that case, the Court required a pain assessment in an examination in order for the examination to be adequate. The Court held that the examiner must test for pain in both active and passive motion, as well as in weight-bearing and non-weight bearing. Measurement of an opposite joint is only required if the joint is "undamaged," i.e., completely without abnormalities. A review of the claims file reflects that on remand, the Veteran's SSA records were obtained, as well as additional VA medical records, and the Veteran underwent a VA examination in March 2016, with an addendum dated in March 2016 to the effect that the claims file was reviewed prior to the March 2016 VA examination. Unfortunately, the Board finds that the March 2016 examination is inadequate as it does not fully comply with the requirements of 38 C.F.R. § 4.59 as discussed in Correia, supra, and another remand is required for a VA examination that complies with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Board finds that another VA examination is required to evaluate the current severity of the service-connected left knee disability. The examination should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing, as well as the necessary findings to evaluate functional loss during flare-ups. 38 C.F.R. § 4.59; see Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and extent of his service-connected left knee disability. The examiner should review the record prior to the examination. The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ) for the knee. The DBQ should be filled out completely as relevant. The examiner should specifically test the left knee range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, and any findings of pain should be indicated as to each of the above tests. The opposite right knee joint should also be tested. 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. Any opinions expressed by the examiner must be accompanied by a complete rationale. 2. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 3. Readjudicate the claims on appeal in light of all of the evidence of record. If the claims remain denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and given a reasonable period of time within which to respond. 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). _________________________________________________ S. L. Kennedy 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).