Citation Nr: 1646531 Decision Date: 12/12/16 Archive Date: 12/21/16 DOCKET NO. 12-10 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating for residuals of a left femur fracture with left patellectomy and degenerative arthritis of the left knee (a left leg disorder), currently evaluated at the 30 percent level. 2. Entitlement to an increased disability rating for degenerative arthritis of the right knee (a right knee disorder), currently evaluated at 10 percent. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran had active duty service in the U.S. Air Force from March 1968 to July 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) St. Petersburg, Florida. Prior Board issuances dealt with and decided other claims then on appeal. Only the Veteran's left leg and right knee disorder claims are back before the Board for appellate review. The Board's April 2016 issuance had remanded those claims for VA re-examination. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately decision upon these claims is not possible yet, given the need for findings addressing recent legal precedent. This is notwithstanding proper measures at the Regional Office level that had scheduled the Veteran for repeat VA examination. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) added to the requirement of information for assessment of musculoskeletal disabilities. The Court held that the final sentence of 38 C.F.R. § 4.59 required enhanced range of motion studies upon VA examination, notwithstanding prior interpretation. Now required were findings indicating functional loss due to pain on both active and passive motion, and in weight-bearing and nonweight-bearing. The September 2016 re-examination did not directly address these categories, and therefore, the Veteran must be afforded another musculoskeletal examination. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's most recent VA outpatient records and associate them with the Veterans Benefits Management System (VBMS) electronic file. 2. Then schedule the Veteran for VA examination to determine the severity of his service-connected left hip, and right and left knee disorders. The VBMS and Virtual VA electronic claims folders must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. The VA examiner is then requested to indicate all present symptoms and manifestations from the Veteran's service-connected left femur fracture with left patellectomy; and from service-connected right and left knee degenerative arthritis. In so doing, the examiner should report complete range of motion findings for the left hip and bilateral knees. Range of motion measurement must be provided in active motion, passive motion, weight-bearing and nonweight-bearing positions (as appropriate). Additionally, the examiner must document all functional loss of the thoracolumbar spine, including due to pain on use, weakness, repetitive motion, flare-ups, fatigue, and incoordination. Any functional loss must be documented in terms of additional lost degrees of range of motion. 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 examiner should provide a complete rationale for any opinions provided. 3. Review the claims file. If the directives specified in this remand have not been implemented, take proper corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, readjudicate the claims on appeal in light all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ GAYLE E. STROMMEN 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).