Citation Nr: 1756669 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 11-02 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease (DJD). 2. Entitlement to a rating in excess of 10 percent for right knee DJD beginning March 23, 2012 and entitlement to a rating in excess of 30 percent beginning May 1, 2013. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1982 to May 1983 and from January 2006 to July 2006. The Veteran also had service in the Naval Reserves from 1991 to 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Travel Board hearing in July 2014 before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. In October 2014, the Board remanded this issue for further evidentiary development. The requested development was completed, and the case was returned to the Board for further appellate action. In an October 2016 rating decision the Board denied the Veteran's increased rating claims. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In April 2017, the parties filed a Joint Motion for Partial Remand (JMR). By an Order dated on May 2, 2017, the Court granted the JMR, and the Board's October 2016 decision with respect to the denial of a disability rating in excess of 10 percent for left knee DJD, a rating in excess of 10 percent for right knee DJD beginning March 23, 2012, and entitlement to a rating in excess of 30 percent beginning May 1, 2013 was vacated and remanded for action consistent with the terms of the JMR. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A recent precedential opinion from the Court necessitates additional evidentiary development. Although the Board regrets the additional delay, a remand is necessary with respect to the claims for increased ratings for the service-connected bilateral knee disabilities on appeal in order to comply with the instructions of the May 2017 JMR and to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). After the Veteran's most recent VA examination, the Court provided a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2016) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). This holding establishes additional requirements that must be met prior to finding that a VA examination is adequate. Id. The VA examination dated in November 2015 and the examinations dated prior to this date do not adequately address this recent case law. Accordingly, a recent VA examination with retrospective and current medical opinions is needed before the claims can be addressed on the merits. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records related to the Veteran's left and right knee disabilities. 2. After the above requested development has been completed, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to ascertain the severity of the service-connected right and left knee disabilities. The examiner must review the claims file and should note that review in the report. The examination report must include ranges of motion of the bilateral knees in active motion, passive motion, weight-bearing, and nonweight-bearing, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that Veteran's service-connected bilateral knee disabilities are worse than shown on some prior examinations. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the right knee. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. 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. 3. After the above actions have been completed, readjudicate the Veteran's claims. If any claim remains denied, issue the Veteran and his representative a supplemental statement of the case. Afford him the appropriate period of time within which to respond thereto. 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). _________________________________________________ DAVID L. WIGHT 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).