Citation Nr: 1802127 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-08 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation, in excess of 20 percent, for postoperative, reconstructive surgery patellofemoral disease with scars, right knee, to include a separate compensable rating for residual scarring. 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 July 1987 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge during a June 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 right knee disability. He contends that the symptoms associated with his postoperative, reconstructive surgery patellofemoral disease with scars, right knee is more severely disabling than reflected by the currently assigned disability evaluation and that a separate evaluation for painful and unstable scars on his right knee is warranted. During the June 2017 videoconference hearing, the Veteran testified that his right knee symptoms worsened since the last VA examination conducted in October 2015. He stated that he currently endured more pain than before and that he noticed more functional limitation than he used to have. June 2017 hearing transcript, at 11. Further, the Veteran stated that three scars on his right knee were painful and tender to touch and that the skin over the scars peeled. Id., at 4-5. The October 2015 VA examination report states, however, that these scars were not painful or unstable, indicating a worsening condition for the scars. October 2015 VA examination report, at 15. 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). Further, the Board finds that the October 2015 VA examination 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 June 2017 hearing that after sitting for a long period of time just like in driving, he experienced numb tingling sensation in his knees and that this type of numbing and aggravating tingling sensation would usually lead him to take his pain medication. June 2017 hearing transcript, at 6. However, the ROM 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 and its impact on functional ability of the Veteran's right knee. No significant neurological findings have been recorded or examined, given these more recent contentions. 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 the records should be documented in the claims folder. 2. Thereafter schedule the Veteran for a VA examination to address the nature and current severity of his right knee disability, to include scars on his right knee. 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. Any neurological abnormality complained of, should also be examined for and any functional limitation set out. Residual scarring should also be defined in detail. 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. 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).