Citation Nr: 1801110 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-27 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial compensable rating and a rating in excess of 10 percent from November 20, 2013 for left knee patellofemoral pain syndrome. 2. Entitlement to an initial compensable rating and a rating in excess of 10 percent from November 20, 2013 for right knee patellofemoral pain syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel INTRODUCTION The Veteran had active service from May 2007 to May 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that assigned noncompensable disability rating for bilateral knee disabilities, after granting service connection for the same. The Veteran disagreed with the noncompensable rating and filed a timely appeal. During the pendency of the appeal, and following a VA examination in November 2013, the RO granted a 10 percent disability rating for each knee, effective November 20, 2013. In September 2016, the Veteran presented sworn testimony during a hearing held at the RO, which was chaired by the undersigned. A transcript of that hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's most recent VA examination of record for his service-connected bilateral knee disabilities was in November 2013. At the September 2016 hearing, the Veteran indicated that his right and left knee conditions had worsened since his most recent VA examination of November 2013. He endorsed increased pained and greater functional impairment, which included locking, instability, and loss of range of motion. VA treatment records from 2016 also make reference to decreased range of motion and locking of both knees and even the notation that a new compensation and pension examination was warranted to evaluate his condition. Additionally, in July 2016 the Court of Appeals for Veterans Claims (Court) issued a precedential decision holding that 38 C.F.R. § 4.59 requires that, whenever possible, musculoskeletal examinations of the joints must include range of motion testing of active motion, passive motion, in weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). The Court also indicated that if the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in a specific case, "he or she should clearly explain why that is so." Id. Therefore, the Board finds that an additional examination is necessary to adjudicate the claims. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary releases, associate any updated treatment records regarding the Veteran's knee disabilities with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and severity of his knee disabilities. The claims file, including this remand, should be reviewed by the examiner and such review should be noted in the examination report. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Active and passive range of motion testing as well as weight-bearing and nonweight-bearing testing must be conducted. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. Further, if any test is not deemed warranted, such should be identified and explained. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. If flare-ups are reported, the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. 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 determine whether there is instability or recurrent subluxation of the right knee and left knee; and if so, this determination should be expressed in terms of slight, moderate, or severe due to either the lateral instability or recurrent subluxation. The examiner must address and reconcile any inconsistencies between the Veteran's assertions that he has bilateral knee instability and the medical evidence of record that shows the Veteran does not have recurrent subluxation or lateral instability. In so doing, and if applicable, the examiner must specifically address the Veteran's use of any assistive devices such as canes and braces and discuss the Veteran's assertions that the has bilateral knee instability. 3. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence and afforded the applicable time period in which to respond. The Veteran 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 A. HERMAN 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).