Citation Nr: 1746910 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 14-03 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease, left knee with limited extension, to include whether the reduction of the evaluation from 50 percent to 10 percent, effective December 1, 2010, was proper. 2. Entitlement to a compensable disability rating for degenerative joint disease, right knee with limited extension, to include whether the reduction of the evaluation from 40 percent to zero percent, effective December 1, 2010, was proper. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified in September 2016 at the Philadelphia RO via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Before the Board can adjudicate the Veteran's claim of entitlement to an increased rating of his right and left knee degenerative joint disease with limited extension, these claims must be remanded in order to provide the Veteran with VA examinations that fully comply with applicable regulations. 38 C.F.R. § 4.59 (2016). Specifically, VA examinations for orthopedic disabilities must include joint testing for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). On the most recent VA examination of the Veteran's knees, conducted in January 2013, the examiner noted that the Veteran experienced functional loss in the form of less movement than normal, disturbance of locomotion, and interference with sitting standing and weight-bearing. However, despite acknowledging that the Veteran experienced interference with weight-bearing, the examiner did not test for pain in weightbearing compared with possible pain with non-weightbearing, nor did they test for pain on both active motion compared with passive motion. 38 C.F.R. § 4.59. In addition to carrying out inadequate physical testing, the January 2013 examiner failed to discuss the potential impact of the Veteran's gouty arthritis in determining the extent to which the Veteran was functionally impaired by his knee condition. The examiner maintained the diagnosis of gouty arthritis of both knees, but did not discuss the condition when evaluating the functional impact of the Veteran's bilateral knee conditions. However, in commenting on the results of physical testing, the examiner stated that "the severity of the symptoms appears to rather exceed the severity of the objective findings, suggesting a significant functional aggravation of the problems." The examiner acknowledged that the Veteran's subjective complaints of pain and discomfort did not accord with the results of physical testing, to include range of motion testing, but did not offer any explanation for this disconnect. On remand, the examiner should again identify whether the Veteran's subjective complaints of functional impairment align with objective testing findings, and if not, the examiner should propose an explanation as to why, to include whether the Veteran is experiencing additional functional impairment attributable to his gouty arthritis. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be afforded a VA examination to determine the current severity of his service-connected left and right knee degenerative joint disease with limitation of extension. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All symptoms and findings must be reported, and any indicated testing must be conducted. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect the results of the testing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why that is so. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments of his left and right knee. The examiner is also asked to specifically reconcile the Veteran's subjective complaints of severe pain and significantly impaired functioning with the April 2010, June 2010, and January 2013 VA examinations that showed only mild musculoskeletal impairments. If the examiner concludes that the Veteran's subjective complaints diverge substantially from objective physical testing results, the examiner should discuss, to the extent possible, the degree to which this dissonance is attributable to separately diagnosable conditions which affect the knees, to specifically include gouty arthritis. If no distinction can be made, this should be so stated. 2. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims on appeal must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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 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). _________________________________________________ A. C. MACKENZIE 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) (2016).