Citation Nr: 1801047 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-06 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for service-connected left knee replacement, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for service-connected right shoulder osteoarthritis with degenerative changes, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to March 1973 and from March 2003 to November 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2017 the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. The LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Remand is required for an adequate examination. In increased evaluation claims regarding joints, "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016) (citing to 38 C.F.R. § 4.59). An examination must address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. Correia, 28 Vet. App. 158. Although VA examinations for these disabilities were conducted in May 2017, the examinations are not adequate. The May 2017 examiner indicated that passive range of motion could not be performed or was not medically appropriate, but gave no explanation for the finding. Accordingly, the Veteran should be afforded new VA examinations. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after May 17, 2017. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an examination to determine the severity of the left knee and right shoulder disabilities. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaires and test the range of the left knee and right shoulder in active and passive motion and (as appropriate) in weight-bearing and non-weight-bearing. If such testing is unable to be performed the examiner must provide an explanation. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN 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).