Citation Nr: 1752816 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-07 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased disability rating for osteopenia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1974 to July 1988 and from February 1991 to May 1991. This matter comes before Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board has reviewed the electronic records maintained in both VBMS and Virtual VA to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserted in the October 2017 Appellant's Post-Remand Brief that the symptoms of her service-connected osteopenia in her left shoulder, left hip, and lumbar spine are not adequately represented by the current disability rating. The Court has held that when a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See, Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Furthermore, the Board notes that the Veteran's left shoulder, left knee, and lumbar spine were most recently examined by VA in February 2015. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of 38 C.F.R. § 4.59, which states "[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 this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. However, compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. In this case, it does not appear that the February 2015 VA examiner performed both active and passive range of motion testing of the Veteran's lumbar spine, right knee, and left ankle. Notably, in Correia, the Court found similar range of motion testing to be inadequate. As the February 2015 VA examination reports do not provide all of the information specified by Correia, this claim must be remanded for a new VA examination to obtain the information necessary to properly adjudicate the claim. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records from June 2017 to the present. All records obtained must be associated with the claims file. 2. After, and only after, step one above has been completed, schedule the Veteran to undergo VA examinations with an appropriate physicians to assess the locations, manifestations and current severity of the Veteran's osteopenia. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding her symptoms of osteopenia. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. For each joint affected by osteopenia, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. For each joint affected by osteopenia, the examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the joint. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. For each joint affected by osteopenia, the examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All opinions provided for each of the disabilities examined must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ MICHAEL A. PAPPAS 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) (2017).