Citation Nr: 1750006 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 14-03 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 30 percent for status post right total knee replacement. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Brandt, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a Travel Board hearing before the undersigned Veterans Law Judge in November 2016. A transcript of that proceeding has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran underwent a total right knee arthroplasty in July 2010. Since September 1, 2011, his service-connected right knee disability is rated as 30 percent disabling under DC 5055 for knee replacement (prosthesis). 38 C.F.R. § 4.71a. In April 2015, an addendum to the October 2013 VA examination was completed to address the Mitchell criteria. See generally Mitchell v. Shinseki, 25 Vet. App. 32 (2011). However, it does not appear that the Veteran was actually present for that examination. As it appears that the VA examiner was unable to report further loss of range of motion due to knee flare-ups without resorting to mere speculation as this would require examination of Veteran during flare-up, a remand is necessary. Accordingly, the Veteran should be afforded a new VA examination to clarify the current severity of his right knee disability. Accordingly, the case is REMANDED for the following action: 1. Obtain any current VA or private treatment identified by the Veteran. 2. Thereafter, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the current severity of the Veteran's service-connected right knee. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should specifically address the following: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. b) The examiner should specifically offer an opinion as to the impact of any functional loss due to pain during flare-ups, considering all procurable and assembled data, and by obtaining all tests and records that might reasonably illuminate the medical analysis. The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, or functional loss manifestations related to flare-ups. c) The examiner should specifically offer an opinion as to the impact of repetitive use over time on his functional ability. If the examiner deems it necessary, the Veteran should be asked to engage in repetitive use over time prior to the examination. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After completion of the above action, readjudicate the Veteran's claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). (CONTINUED ON NEXT PAGE) _________________________________________________ S. HENEKS 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).