Citation Nr: 1802536 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-45 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for a right knee disability. 2. Entitlement to an initial disability rating in excess of 10 percent for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from January 1996 to November 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2013, the Veteran appeared at a hearing before a Veterans Law Judge who has since retired from the Board. In October 2017, the Board sent the Veteran a letter asking him if he wished to have another Board hearing. As indicated in the letter, when the Veteran did not respond it was concluded that he does not wish to appear for another hearing. This appeal was remanded by the Board in July 2014 and November 2016 for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran appeals the denial of an initial disability rating in excess of 10 percent for his left and right knee disability. The Veteran was most recently afforded a VA examination in December 2016 to assess the severity of his knee disability. During the examination, the VA examiner noted that there was evidence of pain in non-weight bearing. The VA examiner, however, did not include the ranges of motion for this finding. It is also noted that the VA examiner was unable to determine whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. The examiner stated that determining the extent of motion loss during flares required resort to speculation as the Veteran was not experiencing a flare at the time of examination, which does not comply with a recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, this case must be returned as inadequate for rating purposes. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder records of the Veteran's VA treatment since February 2017. 2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected left and right knee disabilities. Access to VBMS must be made available to the examiner for review. In accordance with the latest worksheets for rating the knees, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia, the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 2. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the increased rating issue on appeal. The AOJ should also consider the propriety of separate ratings under all potentially applicable diagnostic codes. If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).