Citation Nr: 1708331 Decision Date: 03/17/17 Archive Date: 04/03/17 DOCKET NO. 12-15 384 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected degenerative joint disease of the right knee. 2. Entitlement to a disability rating in excess of 10 percent for residuals of right knee arthroscopy. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from to October 1963 to October 1965. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2012 rating decision in which the RO, denied claims for increased ratings for service connected degenerative joint disease of the right knee and for residuals of right knee arthroscopy. A notice of disagreement (NOD) with respect to these matters was filed in May 2012, and a statement of the case (SOC) addressing these matters was completed in May 2013. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans Appeals), in July 2013. In April 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. Following the April 2015 hearing ,in a May 2015 statement, the Veteran revoked his representation by the Disabled American Veterans. There is no indication that the Veteran desires new representation; therefore, the Veteran is recognized as proceeding pro se in this appeal. In January 2016, the Board inter alia, remanded the higher rating claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, or further development. After accomplishing further action, the AMC continued to deny each higher rating claim (as reflected in the June 2016 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. As noted previously, also on appeal was a request to reopen a previously-denied claim for service connection for a lumbar spine disorder. In January 2016, the Board reopened the claim, and remanded the claim for service connection, on the merits, for further action. In June 2016 rating decision, the AMC granted service connection for lumbar strain and assigned a 40 percent disability rating, effective October 25, 2007. As this matter resolved the claim for service connection, and, to date, the Veteran has not appealed the initial rating or effective date assigned, no claim pertaining to a lumbar spine disorder is currently before the Board This appeal is now being processed utilizing the Veterans l Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems. Also, this appeal has been advanced on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2016). For reasons expressed below, the remaining claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further AOJ action on these claims is warranted, even though such will, regrettably, further delay an appellate decision on these matters. With respect the Veteran's increased rating claim for degenerative joint disease of the right knee, the Board must consider this claim in light of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2016) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. In this case, the findings of the Veteran's service-connected degenerative joint disease of the right knee documented in the most recent, May 2016 VA examination report do not met the requirements of section 4.59 as emphasized in Correia. Specifically, the examiner did not address whether the range of motion testing of the right knee was conducted in active or passive motion, or on weight-bearing or nonweight-bearing. Given this, the examination is inadequate. Therefore, further examination of the right knee to obtain necessary findings is needed. Regarding the increased rating claim for residuals of right knee arthroscopy, the requested new VA examination for the right knee will yield information pertaining to evaluation of this disability. Given that, and the additional records development being requested below, this claim is being remanded, as well. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in the denial of the increased rating claims. See 38 C.F.R. § 3.655(b) (2016). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AOJ should obtain and associate with the claims file copy(ies) of any correspondence referencing the date and time of the examinations-preferably, the notice(s) of examination-sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination in connection with the claims, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA records dated since June 2016. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining claims on appeal (particularly as regards any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b) (West 2014); but see 38 U.S.C.A. § 5103(b)(3) (2016) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2016). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA), See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since February 2016. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination of his right knee by an appropriate medical professional. The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. Range of motion testing of the right knee should be conducted in weight-bearing and nonweight-bearing and on active and passive motion (as appropriate). If possible, range of motion testing of the left knee should also be accomplished (for comparison purposes). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain weakness, excess fatigability, and/or incoordination, on repeated use or during flare-ups; such loss should be expressed in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. The examination report must confirm that all such testing has been made and reflect the results of the testing. If the testing cannot be conducted, the examiner must explain why. The examiner should also indicate whether the right knee demonstrates "slight," "moderate," or "severe" recurrent subluxation or lateral instability. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file copy(ies) of any correspondence referencing the date and time of the examination-preferably, the notice(s) of the examination-sent to him by the pertinent medical facility. 5. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining clams on appeal. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the increased rating claims apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate each claim in light of all pertinent evidence (to include all that added to the VBMS and Virtual VA file(s) since the last adjudication) and legal authority. 7. If any benefit sought on appeal remains denied, furnish to the Veteran a supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The AOJ is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2016).