Citation Nr: 1801954 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-02 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation of lumbar strain with osteoarthritis in excess of 10 percent prior to August 15, 2016, and in excess of 20 percent from then onward. 2. Entitlement to an evaluation in excess of 10 percent for right knee chondromalacia. 3. Entitlement to an evaluation in excess of 10 percent for left knee osteochondritis dissecans. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from May 1997 to October 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in November 2009 and September 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran attended a Board hearing before the undersigned in October 2013; a transcript of that hearing is of record and associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. 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 For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2017), pertaining to functional impairment. VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2016). For disabilities evaluated on the basis of limitation of motion, VA is required to apply regulatory provisions of pertaining to functional impairment. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." 38 C.F.R. § 4.59. Thus, certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016). Here, the Veteran was most recently provided VA examinations for his knee disabilities in June 2017. The VA examiner noted the Veteran's report of functional loss manifested by pain with prolonged walking, sitting and going up stairs. Range of motion testing revealed flexion of the right knee from 0 to 110 degrees, extension from 110 to 0 degrees, and of the left knee flexion from 0 to 130 degrees and extension from 130 to 0 degrees. Notably, the examiner documented pain on examination which caused functional loss. The most recent VA examination for his low back disability was in August 2016. The range of motion testing revealed forward flexion of 0 to 80 degrees and extension 0 to 20 degrees, right lateral flexion 0 to 20 degrees and left lateral flexion 0 to 20 degrees, right lateral rotation of 0 to 30 degrees, and left lateral rotation 0 to 30 degrees. The examiner noted that the Veteran had pain on his range of motion testing. The Veteran claimed that his low back disability had worsened in severity in a March 2017 statement; he noted more severe neurological symptoms than previously reported. Remand is required regarding both claims on appeal for clarification regarding pain on motion. Neither examiner reported "whether and at what point during the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain." Mitchell, 25 Vet. App. at 38. Additionally, regarding the Veteran's lumbar spine disability, the examiner did not attempt any documentation of pain and range of motion in active, passive, weight-bearing and nonweight-bearing. This is inadequate for rating purposes and new examinations should be provided. With regard to the claim for entitlement to TDIU, such claim is "inextricably intertwined" with the issues of increased rating being remanded and the disposition of the TDIU claim must be deferred pending resolving this preliminary matter. See Harris, 1 Vet. App. at 183 (1991). 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. 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 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 Veteran 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, schedule the Veteran for appropriate VA examination to assess the severity of the Veteran's service-connected bilateral knee and lumbar spine disabilities. The entire claims file must be made available to and be 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. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the right and left knee and lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner must describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology. The examiner must express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner must portray the degree of any additional range of motion loss due to pain on use or during flare-ups. 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 claims. 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, the AOJ must 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 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). _________________________________________________ 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) (2016).