Citation Nr: 1803078 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 10-18 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to higher ratings for residuals of a right meniscectomy with degenerative joint disease prior to July 12, 2010, currently assigned a 20 percent rating for instability and a 20 percent rating for other impairment. 2. Entitlement to a rating in excess of 30 percent for a total right knee replacement from November 1, 2011, to include extension of a temporary total rating based upon a need for convalescence. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1978 to November 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before a Veterans Law Judge (VLJ) in February 2013 hearing. A transcript of that hearing is of record. The VLJ who held the February 2013 hearing no longer works for the Board, so the Veteran testified before the undersigned VLJ at an August 2017 hearing. A transcript of that hearing is also of record. While the Board acknowledges and regrets the additional delay and inconvenience to the Veteran, a remand is necessary to provide an adequate VA examination and obtain outstanding medical records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND During this appeal, the record shows that VA afforded the Veteran VA examinations of his right knee in April 2009 and May 2013. However, the examinations are inadequate in view of a more recent decision of the Court of Appeals for Veteran's Claims (Court). In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the Court held that a VA examination of the joints must, wherever possible, 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. In this case, the reports of examination do not reflect the necessary testing or findings. During his May 2013 VA examination, the Veteran stated that he receives social security disability based at least in part on his right knee condition. These records are likely to be relevant to the issue of an increased rating for the Veteran's right knee condition. The claims file does not contain these records and no recorded attempt has been made to obtain them. Accordingly, the case is REMANDED for the following action: 1. Ask the SSA to provide copies of any records in its possession pertaining to its consideration of the Veteran's application for SSA benefits, to include any medical records considered in making a decision on that application, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 2. Provide the Veteran the opportunity to submit additional evidence or identify sources of medical records. If he identifies one or more sources and provides the necessary release, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 3. Thereafter, the Veteran should be scheduled for a VA examination of his knees to ascertain the severity of his right knee disabilities using the most recent Disability Benefits Questionnaire for the Knee and Lower Leg Conditions. All symptoms should be identified along with their frequency, duration, and severity. All clinical findings should be reported in detail to include the functional impact. To the extent possible, the examiner should indicate the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the right and left knees. If the examiner is unable to perform this testing, he or she should clearly explain why that is so. 4. Readjudicate the appeal. 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). _________________________________________________ L. M. BARNARD 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).