Citation Nr: 1801527 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-20 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an evaluation in excess of 30 percent for residuals of left knee injury, status post medial meniscectomy with degenerative joint disease, to include whether there is a basis for a separate compensable rating. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge during a September 2017 videoconference hearing; a transcript is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks a higher evaluation for his service-connected left knee disability. He contends that the symptoms associated with his residuals of left knee injury, status post medial meniscectomy with degenerative joint disease are more severely disabling than reflected by the currently assigned disability evaluation. During the September 2017 videoconference hearing, the Veteran testified that his left knee became more painful since the last VA examination conducted in July 2016 (actually August 2016). He indicated that the number of days when he felt pain in his left knee had increased. September 2017 hearing transcript, at 15. Further, the Veteran stated that pain in his left knee interfered with his work because the knee pain caused him to be less mobile. Id., at 4. The United States Court of Appeals for Veterans Claims (Court) has held that when a Veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board observes that the Veteran last had a VA examination for compensation and pension purposes in August 2016. Thus, the Veteran should be provided an opportunity to report for a current VA orthopedic examination to ascertain the current status of his service-connected left knee disability. Further, the Board finds that the August 2016 VA examination, most recent of record, is inadequate under Correia v. McDonald (citation below). In July 2016, the Court held that 38 C.F.R. § 4.59, read together with 38 C.F.R. §§ 4.40 and 4.45, "creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." See Correia v. McDonald, 28 Vet.App. 158, 168 (2016). The Court determined that range of motion testing in the areas listed in 38 C.F.R. § 4.59 -active motion, passive motion, weight-bearing, and non-weight-bearing -is required "in every case in which those tests can be conducted." Id., at 168, n.7. Here, the Veteran reported in the August 2016 examination that the pain in the left knee got worse while sitting for long periods. August 2016 VA examination report, at 2. However, the range of motion testing for passive motion and non-weight bearing, in particular, was not conducted during the examination, and thus, it lacks discussions for pain associated with passive motion, as well as that with non-weight-bearing motion. Re-examination should also include discussion of instability of the knee or other impairment of motion or function. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding relevant treatment records from VA and any private treatment providers identified by the Veteran. All attempts to obtain records should be documented in the claims folder. 2. Thereafter schedule the Veteran for an appropriate VA examination to address the nature and current severity of his left knee disability. The examiner must review the claims files and indicate in the report that they were reviewed. All indicated tests must be performed. The examiner must include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, for both left and right knee. If the examiner is unable to conduct any part of the required testing or concludes that any part of the required testing is not necessary in this case, he or she should clearly explain why that is so The examiner is advised that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should explain why. A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 3. After the development requested has been completed, the AOJ should review any examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 4. Then, the AOJ should readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for a response, and then return the case to the Board for further appellate action. 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 D. LYON 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).