Citation Nr: 1756595 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 12-31 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for left knee degenerative joint disease. 2. Entitlement to a rating in excess of 20 percent for right knee degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1979 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In connection with his appeal, the appellant requested a hearing before a Veterans Law Judge. In December 2016, however, the appellant withdrew his hearing request and asked that his case be forwarded to the Board for a decision. The Board remanded this case in March 2017 for further development, and it is now properly before the Borad. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon review of the evidence of record, remand is required to ensure compliance with the Board's March 2017 remand directives. A part of the Board's March 2017 remand, the Board directed the AOJ to schedule an examination of the Veteran's knees to determine their current level of disability. The Board stated "[t]he examination report should include the range of motion of the right and left knee in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing . . . ". As part of an April 2017 examination report, the examiner wrote that there is objective evidence of pain on motion in both active and passive range of motion and in weight-bearing and nonweight-bearing range of motion testing. However, the examiner did not "specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing" portrayed in terms of the degree of additional range-of-motion loss due to pain in all of these sitautuations, as required by the Board's remand directive and VA regulations. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 37, 44 (2011) and Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). A remand by the Board confers on an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the above, remand is warranted to ensure compliance with the Board's March 2017 remand. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding Naval Medical Center Portsmouth and VA records of evaluation and/or treatment. 2. In compliance with the Board's March 2017 remand, schedule the Veteran for a VA medical examination to clarify the severity of his service-connected right and left knee disabilities. Access to the Veteran's electronic VA claims file should be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the record, the examiner should specifically delineate all pathology and symptoms attributable to the service-connected right and left knee disabilities, to include any arthritis and/or meniscal pathology, as well as any limitation of motion, instability, subluxation, locking, pain or effusion. The examination report should include the range of motion of the right and left knee in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, portrayed in terms of the degree of additional range-of-motion loss due to pain in all of these sitautuations. If any such testing cannot be performed on the joint at issue, he or she should state so and provide an explanation. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. A clear rationale for all opinions must be provided. 3. After undertaking any additional development deemed appropriate, adjudicate the claims in light of any additional evidence added to the record. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL LANE 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).