Citation Nr: 1755056 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 10-15 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease, status post arthroplasty of the right knee (hereinafter "right knee disability"). 2. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome of the left knee (hereinafter "left knee disability"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to December 1998 and from January 1999 to November 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a Board video conference hearing before the undersigned in January 2011. A transcript of the hearing is of record. In July 2014, the Board determined that the criteria for ratings in excess of 10 percent for the right and left knee disabilities had not been met. The Veteran appealed the Board's July 2014 decision to the U.S. Court of Appeals for Veterans Claims ("Court"). In a July 2015 Order, the Court granted a Joint Motion for Partial Remand, which vacated and remanded the Board's July 2014 decision to the extent that it denied ratings in excess of 10 percent for the right and left knee disabilities. Pursuant to the Joint Motion, the Board remanded the claim in October 2015. In June 2016, the Board again denied initial ratings in excess of 10 percent for right and left knee disabilities. The Veteran again appealed this determination to the Court. In a September 2017, the Court granted a Joint Motion for Vacatur and Remand (JMR) and remanded the case back to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The JMR determined that the Board erred when relying on VA examinations dated in January 2009, November 2012 and January 2016 as there was no indication in the examination reports that range of motion testing for both passive and active motion and weight-bearing and non-weight bearing was conducted pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). As such, the JMR directed the Board to obtain a new VA examination. In turn, this case must be returned to the AOJ for compliance with the JMR. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA orthopedic examination to assess the severity his service-connected right and left knee disabilities. The electronic record, to include a complete copy of the REMAND, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of both knees (expressed in degrees) in active motion, passive motion, weight-bearing and nonweight-bearing. The examiner should note the point at which pain begins in the range of motion. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the knees. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the left knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether there is any lateral instability and/or recurrent subluxation. If instability is present, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. 2. Readjudicate the appeal. 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 (2014). _________________________________________________ L.M. BARNARD 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).