Citation Nr: 1801663 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-25 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent prior to April 25, 2016, and 20 percent thereafter, for low back strain with mild L5-S1 facet osteoarthropathy. 2. Entitlement to an initial evaluation in excess of 10 percent for left knee strain. 3. Entitlement to an initial evaluation in excess of 10 percent for right knee strain. REPRESENTATION Appellant represented by: Aires Robinson, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active military service from June 2006 to October 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before a VA Decision Review Officer in February 2016 and before the Board in May 2017. Transcripts of these hearings are of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is required to ensure VA's complete compliance with the duty to assist the Veteran in the development of his claim. The Court has recently held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The requirements of Correia also apply in cases where ratings are not predicated on limitation of motion of the affected part. See Southall-Norman v. McDonald, 28 Vet.App. 346, 351 (2016). The VA examinations of record do not include any section for specifying ranges of motion as demonstrated on active and/or passive testing or on weight-bearing. Therefore, as these VA examinations are inadequate under the holding in Correia, a new VA examination is necessary to address the severity of the Veteran's service-connected bilateral knee disabilities. With respect to the Veteran's service-connected low back disability, March 2017 private treatment records indicate that he sought treatment for "new [left] leg numbness affecting [the] entire leg," and notes a central disc protrusion at the L4-5 level causes contact with the traversing L5 nerve root. Given these recent findings, the record suggests the Veteran's low back disability has worsened since the most recent VA examination, performed in April 2016. As such, on remand, the Veteran should be provided a new VA examination to address the current severity of his low back disability, including any neurological manifestations. See 38 C.F.R. § 3.159; see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). 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 Veteran and request he identify any non-VA medical treatment for his low back or bilateral knee disabilities. For each identified treatment provider, the Veteran should be requested to complete and return the necessary authorizations for the release of any treatment records not currently on file. Reasonable efforts should be made to obtain these records. If private records are identified the RO must make at least two attempts to obtain them, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the evidence is later obtained, the claim may be readjudicated. 2. Following completion of the above, schedule the Veteran for a VA spine examination to address the nature and severity of his service-connected low back disability. The entire claims file, including this REMAND, must be provided to the examiner for review. Any clinically indicated testing and/or consultations must be accomplished. Following a review of the claims file and physical examination of the Veteran, the examiner is to provide a detailed review of the Veteran's pertinent medical history current complaints and the nature and extent of any disability, including functional effects on employability and activities of daily life. The examiner must provide an opinion as to whether the Veteran experiences additional loss of motion of the lumbar spine during flare-ups or when the joint is used repeatedly over a period of time, and must also specifically address the Veteran's assertions of neurological manifestations. If such an opinion cannot be rendered without resort to speculation, the basis for such a determination must be provided. The examiner is requested to address range of motion and limitation function in both active and passive motion, and both weight-bearing and non-weight-bearing motion. A complete rationale for any opinions expressed must be provided. 3. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected bilateral knee disabilities. The entire claims file, including this REMAND, must be provided to the examiner for review. Any clinically indicated testing and/or consultations must be accomplished. Following a review of the claims file and physical examination of the Veteran, the examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, instability, and/or incoordination of the bilateral knees, specifically commenting on the Veteran's assertions of instability and buckling, and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. The VA examination must include joint testing for pain on both active and passive motion in both weight-bearing and non weight-bearing positions. If any such testing cannot be accomplished then the examiner must explain why this is so. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).