Citation Nr: 1803499 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 08-25 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease (DJD) of the right knee. 2. Entitlement to a separate evaluation for instability or subluxation of the right knee associated with DJD prior to November 25, 2014, and an evaluation in excess of 10 percent for instability or subluxation from November 25, 2014. 3. Entitlement to an initial evaluation in excess of 10 percent for left knee strain. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION This case came before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision and June 2008 Decision Review Officer (DRO) decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). In the July 2007 rating decision, the RO granted service connection for right knee degenerative joint disease and assigned a 10 percent disability evaluation, effective March 1, 2007. In the June 2008 DRO decision, the RO granted service connection for left knee strain and assigned a 0 percent disability evaluation, effective March 1, 2007. In May 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In August 2011, the Board remanded the appeal for development of the record and for issuance of a Statement of the Case (SOC) with respect to the evaluation of the Veteran's left knee disability. The SOC was issued in March 2012, and the Veteran subsequently perfected his appeal. Subsequent to the Board's August 2011 remand, VA was notified that the Veteran had moved to Massachusetts. Jurisdiction over his claim was transferred to the Boston, Massachusetts RO. In a November 2014 rating decision, the RO awarded a 10 percent evaluation for the Veteran's left knee disability, effective March 1, 2007, the date of receipt of the Veteran's claim for service connection. In an April 2015 rating decision, the RO awarded a separate 10 percent evaluation for instability or subluxation of the right knee, effective November 25, 2014, the date of a VA examination showing these manifestations. In February 2017, the Veteran was afforded a hearing before the undersigned with respect to his left knee disability. A transcript of that hearing is of record. In May 2017, this matter was last before the Board, at which time it was remanded for further development. In a November 2017 rating decision, the Appeals Management Center (AMC) awarded service connection for "limitation of extension of the right knee" with a non-compensable evaluation. The AMC suggested this represented a full grant of benefits; however, the question is germane to the evaluation of the right knee, and the Board will consider it. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A November 2011 VA physical therapy consultation report documents that the Veteran was assessed with bilateral genu recurvatum in weight bearing, and that his right knee exhibited negative 5 degrees of extension on active range of motion. Some degree of genu recurvatum (which means backward curving or hyperextended knee) is normal in females, and when acquired, is a finding that occurs as part of other conditions, such as nerve paralysis or osteoarthritis, rather than being a primary diagnosis or disability. 68 Fed. Reg. 7017 (February 11, 2003). Genu recurvatum is defined as hyperextension of the knee. See Dorland's Illustrated Medical Dictionary 782 (31st ed. 2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). In June 2017, the Veteran was afforded a VA examination. The report of the examination documents objective findings regarding the knee, and notes that the Veteran's claims file was reviewed in conjunction with the examination. Notwithstanding, the Board concludes that the examination report is inadequate because it did not address the history or presence of genu recurvatum. Accordingly, the report is returned. 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected knee disabilities. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination. Tests of joint motion should include range of motion testing in active motion, passive motion, weight-bearing and nonweight-bearing, including the opposing joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. The examiner should note at which point in the Veteran's range of motion that pain starts. The extent of any weakened movement, excess fatigability and pain on use, should be described. To the extent possible, the functional impairment due to weakened movement, excess fatigability, and pain on use should be assessed in terms of additional degrees of limitation of motion. Range of motion studies should be conducted. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the physician should so state and explain why. In addressing the severity of the right knee, the examiner must address the history of bilateral genu recurvatum, as reflected in the November 16, 2011, VA physical therapy consultation report. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. After completion of the development directed above, to the extent possible, and any additional development of the evidence that the AOJ may deem necessary, the AOJ should review the record and determine if the benefits sought can be granted. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. 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). _________________________________________________ K. J. ALIBRANDO 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) (2016).