Citation Nr: 1756444 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-15 576A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease. 2. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease. 3. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Clyde B. Gore, Attorney WITNESSES AT HEARING ON APPEAL The Veteran; and the Veteran's spouse ATTORNEY FOR THE BOARD N. Rasool, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1984 to September 1984, and in the Navy from January 2006 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The RO in Columbia, South Carolina has assumed jurisdiction as Agency of Original Jurisdiction (AOJ). In June 2016, the Veteran presented testimony during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran appeals the denial of entitlement to a rating higher than 10 percent disabling for bilateral knee degenerative joint disease and to a rating higher than 10 percent for GERD. The Veteran was most recently afforded a VA examination to assess the severity of her bilateral knee disabilities in October 2011. At the examination, the Veteran reported flare-ups impacting the function of the right knee. Additionally, at the June 2016 Board hearing, the Veteran testified that she suffers from constant flare-ups of both knees and that these flare-ups affect her ability to maintain stability. Given the Veteran's statements concerning flare-ups and a recent Court holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), additional VA examination is required. Also, during the June 2016 hearing, the Veteran provided testimony indicating that her service-connected GERD may have worsened since her last VA examination. The evidence shows that the Veteran was last examined by VA in 2011 for this disability. As the Veteran indicates a worsening since her last VA examination and the Board finds that the 2011 VA examination is too remote to adequately assess the severity of GERD, a remand is warranted to afford the Veteran an examination to ascertain the current level of severity of this disability. To ensure that the record reflects the current severity of her disability, a contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Lastly, the Board notes that during her June 2016 hearing, the Veteran reported that she received treatment through TRICARE at a Moncrief Army medical facility. On remand, the AOJ should attempt to obtain any outstanding treatment records from this source. Accordingly, the case is REMANDED for the following action: 1. With the assistance of the Veteran and her representative as necessary, obtain any relevant treatment records from the Veteran's TRICARE providers, to include the Moncrief Army medical facility. All attempts to obtain records should be documented in the claims folder. The Veteran's assistance in identifying and obtaining records should be solicited as needed. 2. Afford the Veteran an appropriate VA examination to determine the nature and severity of her service-connected right and left knee degenerative joint disease conditions. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • 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. The VA examiner should provide a complete rationale for any opinions provided. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of her service-connected GERD. Access to the electronic claims file must be made available to the examiner in conjunction with the examination. In accordance with the latest worksheets for rating GERD, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of her GERD. The examiner must be sure to address the applicable rating criteria. A complete rationale for any opinions expressed must be provided. 4. Thereafter, the remanded issues should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ T. MAINELLI 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).