Citation Nr: 1751796	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  05-39 432	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an increased rating in excess of 10 percent for posttraumatic osteoarthritis of the left knee previously evaluated as residuals of left knee injury.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Yoffe, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1963 to September 1966. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Regional Office (RO) of the Department of Veterans Affairs (VA).
 
The Veteran testified at a March 2008 Board hearing at the RO in Philadelphia and the transcript is associated with the file.  In a June 2012 letter, the Veteran was notified that the Board no longer employed the Veterans Law Judge who held the hearing and he had 30 days to request an additional hearing.  The Veteran did not respond to the June 2012 letter requesting an additional hearing within 30 days and the Board has proceeded with this matter.

The appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.


REMAND

Pursuant to a September 2017 Joint a Motion for Remand (JMR), a remand is necessary.  According to the JMR, the prior March 2016 Board 

[R]elied on VA examinations dated April 2005, November 2006, December 2008, and October 2015.  Those VA examinations, however, do not indicate whether range-of-motion testing was conducted on active and passive motion and in weight-bearing and nonweightbearing . . . The parties thus agree that the examination reports are inadequate under Correia, and that remand is warranted for the Board to obtain a VA examination that conducts range-of-motion testing on active and passive motion and in weight-bearing and nonweight-bearing positions, or explains why such testing is not feasible.  See Correia, 28 Vet. App. at 168; 38 C.F.R. § 4.59.

For clarification, the JMR contains an error, the "October 2015" VA examination is dated October 2014. 

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination for his left knee.  The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.  

Please emphasize to the VA examiner that weight-bearing, and nonweight-bearing, passive and active range of motion testing must be performed for the Veteran's left knee, including the results following repetitive motion testing and whether there is any functional loss, and for the opposite joint. 

The examiner should be asked to note any additional functional loss, including in terms of additional degrees of limitation of motion (to the extent feasible) due to any weakened movement, excess fatigability, incoordination, or pain on use.

If flare-ups are noted, the examiner should likewise be asked to note any additional functional limitation resulting from flare-ups, including in terms of any additional degrees of limitation of motion (to the extent feasible).  

2.  Obtain any outstanding pertinent VA treatment records and associate any records received with the electronic claims file.

3.  Readjudicate the claims in light of all the evidence.  If the benefits sought remain denied, the AOJ should provide the Veteran and his representative a Supplemental Statement of the Case.  

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. §§ 5109B, 7112 (2012).




_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).