Citation Nr: 1803421 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-03 366A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an evaluation in excess of 10 percent for suspected torn lateral meniscus of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Hendricks, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1969 to January 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2015. This case was before the Board in July 2015 and June 2017. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the June 2017 remand, the Board directed the RO to schedule the Veteran for a VA knee examination that comported with the range of motion testing requirements of the recent holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the Board directed the examiner to test the range of motion of the right knee for pain in active motion, passive motion, weightbearing, and in non-weightbearing. The Veteran underwent a VA knee examination in February 2017. However, while the examiner noted there was objective evidence of pain on passive range of motion testing of the right knee, he did not provide any specific range of motion measurements, or provide a clear explanation as to why these range of motion measurements could not be obtained. Thus, the Board must again remand the Veteran's claim for a new VA knee examination in order to ensure compliance with its previous remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all outstanding VA treatment records and associate those documents with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of his right knee disability. The examiner should test and provide range of motion measurements of the right knee for pain in active motion, passive motion, weightbearing, and in non-weightbearing, and if possible, with range of the opposite undamaged joint. 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 examiner is further reminded that should any additional functional impairment be noted during flare-up, repeated use, and/or as a result of pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees. This should include asking the Veteran to demonstrate what his range of motion is during a flare-up. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Following any indicated development, the AOJ should review the claims file and readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. HYLAND 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).