Citation Nr: 1751713 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-22 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for degenerative changes of the right knee. 2. Entitlement to a disability rating in excess of 10 percent for degenerative changes of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active duty service from May 1981 to September 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A Notice of Disagreement was submitted in November 2011; a Statement of the Case was issued in May 2013; and a VA Form 9 was received in June 2013. The Veteran testified before the undersigned at a Board video teleconference hearing in March 2015. A transcript of the hearing is associated with the record. These matters were previously before the Board in June 2015, at which time they were remanded for further development of the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an increased rating of his right and left knee disabilities. Following the Board's June 2015 remand, the Veteran was provided a VA examination for his right and left knee disabilities in August 2015. Subsequent to the August 2015 VA knee examination the Court issued a new precedential opinion that directly impacts the issues on appeal. Specifically, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found 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. The August 2015 VA examination does not show compliance with Correia and thus an additional VA examination is warranted. Additionally, the Veteran submitted a statement in May 2016 in which he endorsed worsening left knee symptomology over the last 6 months. He reported that he underwent VA treatment/examination on March 12, 2016, at the VAMC in Montgomery, Alabama. It is unclear if the "examination" was a comprehensive C&P examination of the knees or if it was part of routine knee treatment. In any event, the electronic claims file does not contain any records of VA treatment outside of the 2011 and 2015 VA knee examination reports. The Veteran also reported that he receives ongoing private treatment for his knee from Dr. Hartzog. Accordingly, any and all outstanding records of VA and private treatment should be obtained upon remand. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain all pertinent, outstanding medical records, to include (i) records of VA treatment dated from 2010 to the present, and specifically a March 12, 2016, examination/treatment conducted at the VAMC in Montgomery, Alabama; and (ii) any pertinent records of private treatment from Dr. Hartzog. 2. Schedule the Veteran for an appropriate VA examination to evaluate the service connected left and right knee disabilities. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the knees cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. 3. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant 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). 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). _________________________________________________ TANYA SMITH 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).