Citation Nr: 1800031 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 13-25 507A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a rating in excess of 20 percent for right knee degenerative arthritis. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from October 1994 to October 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which in relevant part, granted a 10 percent rating for right knee degenerative arthritis. The Veteran submitted a Notice of Disagreement in April 2012 and the RO issued a Statement of the Case (SOC) in August 2013. The Veteran submitted a timely substantive appeal (VA Form 9) in September 2013. A September 2014 rating decision increased the right knee degenerative arthritis rating to 20 percent. The RO issued Supplemental SOCs in May 2017 and September 2017. In July 2017, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of this hearing is in the claims file. The Veteran was represented by the American Legion in this matter, which was certified to the Board in September 2017. In October 2017, the representative submitted a motion to withdraw based upon the Veteran's failure to cooperate. Subsequently, in December 2017, the Veteran submitted a statement in which he requested that the Board grant the American Legion's motion for withdrawal of representation. He stated that he was currently opting to represent himself. Therefore, in light of the representative's request and the Veteran's response, the Board grants the motion to withdraw upon a showing of good cause. See 38 C.F.R. § 20.608(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Following the issuance of the September 2017 Supplemental SOC, the Veteran informed VA that the August 2017 examiner made a mistake regarding the flexion measurements of his knee. He stated that a new exam was forthcoming which would correctly reflect the range of motion measurements for his knee. Subsequently, in October 2017, an addendum opinion was received in which the prior examiner confirmed the range of motion findings from the August 2017 examination report. Additionally, in October 2017, the RO received VA 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, releasing medical records from G. Wareham, M.D. of California Imaging and Diagnostics for the period of November 2016 to the present. The release was rejected for an invalid signature, as it was signed by the Veteran's representative rather than the Veteran. Finally, a review of the claims file reveals that the August 2017 examination report does not specify whether the range of motion measurements are active or passive. It also does not specify whether the results are weight-bearing or nonweight-bearing. See 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, remand is warranted to afford the Veteran the opportunity to obtain the medical records from California Imaging and Diagnostics, after which a new examination should be performed, followed by re-adjudication of the claim by the AOJ with consideration of the entire record. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Centers and obtain and associate with the claims file all outstanding records of treatment for right knee degenerative arthritis. 2. Contact the Veteran and afford him the opportunity to identify any relevant medical records by name, address, and dates of treatment or examination for his right knee degenerative arthritis. This should include medical records from California Imaging and Diagnostics as identified in the October 2017 VA 21-4142. Subsequently, and after securing the proper authorizations where necessary, obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the claims file. 3. If any treatment records, either VA or non-VA, cannot be obtained after reasonable efforts, issue a formal determination documented in the claims file that such records do not exist or that further efforts to obtain such records would be futile. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, per 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. Subsequently, schedule a new VA examination to evaluate the severity of the service-connected right knee degenerative arthritis. The claims file and copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder has been reviewed. All indicated tests must be accomplished and all clinical findings must be reported in detail. The examiner must describe to what extent, if any, the Veteran has any right knee pathology or reduced function in the right knee. It must be determined whether there is any objective evidence of functional limitation due to pain caused by the right knee degenerative arthritis. If so, each of those limitations should be set forth in detail. The examiner must test the range of motion of the Veteran's right knee. The examiner must test and record the range of motion for BOTH knees in 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 examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). 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 not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. 5. After the above development has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above and then re-adjudicate the Veteran's claim for increased ratings for right knee degenerative arthritis. If the determination remains adverse to the Veteran, the AOJ should furnish an appropriate Supplemental Statement of the Case and afford the Veteran the opportunity to respond. The case should be returned to the Board, if in order, for further review. 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 (2012). _________________________________________________ DEBORAH SINGLETON 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).