Citation Nr: 1753379 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-25 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent disabling for cervical spine strain with degenerative disc disease and spinal stenosis. 2. Entitlement to an initial rating in excess of 10 percent disabling for right knee patellofemoral syndrome (PFS), including degenerative joint disease (DJD). 3. Entitlement to an initial rating in excess of 10 percent disabling for left knee PFS, including DJD. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1988 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. A June 2012 rating decision by the RO granted entitlement to service connection for migraine headaches. The RO's grant of service connection for this issue constitutes a full award of these benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. Id. (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating and/or the effective date assigned). Additionally, the Board notes that a July 2015 rating decision by the RO granted an increased 10 percent disability rating for cervical spine disability. As this is not the maximum disability rating possible, the appeal as to this issue remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In March 2013, the Veteran appeared with his representative for a travel Board hearing before the undersigned. A transcript of that proceeding has been associated with the record. These matters were remanded by the Board in May 2015 for additional development. Such development was undertaken and the matters returned to the Board for appellate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Regrettably, the Board finds that the claims on appeal must again be remanded to the AOJ for additional development prior to appellate consideration. See generally, Correia v. McDonald, 28 Vet. App. 158 (2016); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In Correia, the United States Court of Appeals for Veterans Claims (Court) elaborated on VA examination requirements with respect to joint testing for pain pursuant to 38 C.F.R. § 4.59. Specifically, the Court held that VA examinations for musculoskeletal claims must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint, as well as a determination as to whether a musculoskeletal disability involving joint or periarticular pathology is painful, whether or not the particular disability is evaluated under a diagnostic code predicated on range of motion measurements. Id. In this case, the Veteran was most recently afforded VA examinations in July 2015. The Board notes, however, that these examinations do not meet the criteria noted in Correia. Thus, a remand for new examinations is necessary. Additionally, where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr, supra. Report of the July 2015 cervical spine examination reflects, in pertinent part, diagnoses of degenerative disc disease and spinal stenosis. The examiner noted there was no evidence of cervical radiculopathy. Rather, the examiner intimated that any sensation of numbness and/or tingling experienced by the Veteran is due to his diagnosed carpal tunnel syndrome. It is not clear whether or to what extent the examiner considered the Veteran's lay statements regarding ongoing symptomatology. In particular, at his March 2013 hearing, the Veteran testified that he experienced, in pertinent part, persistent muscle spasms in his neck and numbness around the back side of his shoulders. The apparent failure to consider the Veteran's statements regarding matters which he is competent to testify to renders the examiner's opinion inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). In that regard, the Board also notes that treatment records dated in November 2010 reflect the Veteran reported a throbbing sensation at the armpit. Treatment records dated in February 2013 seem to indicate that the numbness and/or tingling experienced by the Veteran is, at least in part, due to his diagnosed cervical stenosis. Without proper clarification regarding the etiology of such symptoms, the Board lacks the medical expertise necessary to make a determination in this case. Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). In light of the foregoing, the Board finds a remand to obtain a new examination and opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding post-service medical treatment records from VA treatment facilities. 2. Thereafter, schedule the Veteran for VA examination by an appropriate medical professional to determine the nature and current severity of the Veteran's service-connected bilateral knee disabilities. In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for both joints in question. If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, the examiner should clearly explain why that is the case. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner should: a. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. b. Indicate whether there is recurrent subluxation or instability of the left and/or right knee, and if so, the severity of any recurrent subluxation or instability. If instability is unable to be tested, an explanation should be provided. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. To the extent possible, all losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. 3. Schedule the Veteran for VA examination by an appropriate medical professional to determine the nature and current severity of the Veteran's service-connected cervical spine disability, including any associated neurologic abnormalities. In particular, the examiner must test the range of motion in active motion and passive motion for the cervical spine. If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, the examiner should clearly explain why that is the case. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner should: Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. Any opinion rendered should reflect consideration of the Veteran's lay statements regarding ongoing symptomatology and the September 2010 diagnosis of cervical stenosis, and discuss, to the extent possible, whether symptomatology, such as numbness in the back shoulder can be attributed to his cervical spine disability. If not, the examiner should clearly explain why this is the case. 4. Thereafter, readjudicate the issues remaining on appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. The Veteran 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 (2014). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).