Citation Nr: 1802461 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-10 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a rating higher than 10 percent for degenerative joint disease (i.e., arthritis) of the right knee. 2. Entitlement to a separate compensable rating prior to May 17, 2012, and a rating higher than 10 percent since, for instability of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from December 1991 to September 1993. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Later, following the Veteran's relocation, jurisdiction was transferred to the RO in Manchester, New Hampshire. In June 2013, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing. A transcript of the proceeding is of record. During the hearing, despite testifying that he had lost his job as a police officer because of his right knee disability, the Veteran specifically stated that he was not claiming entitlement to a total disability rating based on individual unemployability (TDIU) in association with his claims for higher ratings for his right knee disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This case was most recently before the Board in August 2016, when the claims were remanded for further development - including especially having the Veteran undergo another VA compensation examination reassessing the severity of his right knee disability. Still further development of these claims is required, however, before deciding this appeal, so the Board is REMANDING them to the Agency of Original Jurisdiction (AOJ). REMAND Pursuant to the Board's prior August 2016 remand, the RO/AMC scheduled the Veteran for a VA compensation examination to reassess the severity of his right knee disability (all components of it). The record reflects that he failed to report for the scheduled examination. VA regulation expressly provides that, if a claimant fails to report for a scheduled examination without good cause, in relation to an increased-rating claim, as is the case here, then the claim shall be denied. 38 C.F.R. § 3.655(b) (2017). VA's duty to assist is not a one-way street, so the Veteran is obligated to cooperate in VA's efforts to develop his claims. See Wood v. Derwinski, 1 Vet. App. 406 (1991). Here, though, despite VA regulation expressly providing that summary denial of these claims is warranted, the Board must reconsider them in light of the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range-of-motion measurements of the opposite undamaged joint. The Board has reviewed the findings from the Veteran's most recent October 2014 VA examination for his right knee disability and sees these findings do not meet the specifications of Correia. Specifically, the examiner did not address whether the range-of-motion testing was conducted on active or passive motion and weight-bearing or nonweight-bearing. Given this, the Board is not satisfied the examination findings are adequate for determining whether higher ratings are warranted. Therefore, an additional examination is necessary under 38 C.F.R. § 3.159(c)(4). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination, even if not statutorily obligated to, it must provide an adequate one, else, notify the claimant why one cannot or will not be provided); and 38 C.F.R. § 4.2 (indicating it is incumbent on VA in this situation to obtain all necessary supplemental information needed to properly rate the disability at issue). Additionally, while on remand, the AOJ should obtain the Veteran's updated medical treatment records - if relevant to these claims. Accordingly, these claims are REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims. Also ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not yet been obtained. All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). 2. After receiving all additional treatment records, schedule the Veteran for another VA compensation examination to reassess the severity of his right knee disability (all components of it, so including the arthritis and instability). His claims file, including a complete copy of this remand, must be made available to the examiner for review of the history of this disability. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must: (a) Conduct any indicated diagnostic tests that are deemed necessary for an accurate assessment, including an analysis of any additional disability due to pain, weakness, premature or excess fatigability, or incoordination, such as during prolonged, repeated use or during "flare ups". The examiner should report (in degrees) the point at which pain is objectively recorded. These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been done and reflect the results of the testing. If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so. (b) Describe all recurrent subluxation or lateral instability, including in terms of whether it is slight, moderate, or severe. Also, discuss any symptoms associated with cartilage impairment that is related to the right knee disability, including whether there are frequent episodes of "locking," pain, and effusion into the knee joint. (c) As well, comment on what limitations might be expected in the workplace (based on the Veteran's employment history and training) with respect to his right knee degenerative joint disease and instability. The examiner must provide complete rationale for all opinions given, preferably citing to clinical findings or other medical authority. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice. 3. Ensure the requested examination report is responsive to the applicable rating criteria and all questions asked. If it is not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 4.2. 4. After completing this and all other development deemed necessary, readjudicate these claims in light of all additional evidence. If these claims continue to be denied, or are not granted to the Veteran's satisfaction, send him and his representative another Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (West 2014). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), only a decision of the Board 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).