Citation Nr: 1803929 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-15 294A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Evaluation of subacromial bursitis right shoulder, currently rated as noncompensable prior to December 30, 2014, and for a rating in excess of 20 percent thereafter. 2. Evaluation of subacromial left knee status post ACL repair, currently rated as noncompensable prior to November 17, 2016, and for a rating in excess of 10 percent thereafter. 3. Evaluation of patellofemoral pain syndrome right knee, currently rated as noncompensable prior to November 17, 2016, and for a rating in excess of 10 percent thereafter. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1991 to November 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction has since been transferred to the Roanoke, Virginia RO. The Veteran testified at a video conference hearing before the undersigned VLJ in August 2017. A transcript of the hearing is of record. In regards to the issues on appeal, the March 2012 rating decision granted service connection with the following initial disability ratings: (1) subacromial bursitis right shoulder (dominant) evaluated as 0 percent disabling, effective December 1, 2011; (2) left knee status post ACL repair evaluated as 0 percent disabling, effective December 1, 2011; and (3) patellofemoral pain syndrome right knee evaluated as 0 percent disabling, effective December 1, 2011. Subsequently, in a December 2016 rating decision, the RO increased the Veteran's disability ratings to the following: (1) subacromial bursitis right shoulder (dominant) increased to 20 percent disabling, effective December 30, 2014; (2) left knee status post ACL repair increased to 10 percent disabling, effective November 17, 2016; and (3) patellofemoral pain syndrome right knee increased to 10 percent disabling, effective November 17, 2016. These staged ratings are reflected on the title page. The Board notes that the VA Records Management Center sent the Veteran correspondence dated August 2011 in regards to a "Privacy Act request." The correspondence acknowledges receipt of such a request dated August 4, 2017 and informs the Veteran that his request will be processed. The Board has made careful review of the record and the August 4, 2017 statement appears to be, not a Privacy Act request, but rather a request by the Veteran, through his representative, to have his VA medical records for the period of October 2011 to the present obtained and loaded into the claim file. As this is not a Privacy Act request, and because the Board will address the Veteran's request through this remand, the Board will proceed with the appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran, if further action is required. REMAND The Board finds that additional development is needed prior to adjudication of the Veteran's appeal. First, the Board finds that additional treatment records must be obtained and associated with the claim file. During the August 2017 video conference hearing, the Veteran indicated that he receives ongoing VA and private treatment; however, these records have not been associated with the claim file. In addition, the Veteran's representative indicated that there are outstanding service treatment records that are relevant to the earlier period on appeal. The Board will remand to obtain these outstanding treatment records. Following the procurement of the missing treatment records, the Board will afford the Veteran a new examination. During the hearing, the Veteran testified that he could not bend his knee more than 30 degrees. However, the most recent VA examination from December 2016 indicates flexion in both knees of at least 90 degrees. In addition, the Veteran testified that he has instability in both knees. However, the December 2016 examination did not note instability. Based on these assertions and discrepancies, it appears that the Veteran's disabilities may have worsened. Therefore, a new examination is needed. See e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In addition, the Board finds that additional examinations are needed in order to comply with the recent precedential decision by the Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court found the final sentence of 38 C.F.R. § 4.59 created a requirement that whenever possible in the cases of joint disabilities, "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." 38 C.F.R. § 4.59 (2017). The most recent VA examination findings from December 2016, do not meet the specifications of Correia. For example, the examinations do not report passive range of motion findings. Therefore, the Board will remand to obtain examinations that comply with the Court's holding in Correia. Accordingly, the appeal is REMANDED for the following action: 1. After securing all necessary consent forms from the Veteran, obtain all outstanding treatment records, to include any service, VA, and private treatment records, pertaining to the issues on appeal. The Board notes that during the August 2017 hearing, the Veteran indicated that he may have the missing service treatment records in his possession. All efforts to obtain these records should be documented in the claim file. If the records are unavailable, it should be noted on the file and the reason for their unavailability should be noted. 2. After completion of the above, schedule the Veteran for the appropriate VA examination(s) to assess the severity of the service-connected disabilities on appeal. The claim folder and all pertinent treatment records should be made available to the examiner for review. Review of the claim folder should be noted in the examiner's report. All necessary diagnostic testing should be performed. The examiner is asked to specifically provide range of motion testing (ROM) for each of the service-connected disabilities on appeal for active motion, passive motion, weight-bearing, and nonweight-bearing. Full ROM testing also must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM on testing is conducted, this must be explained in the report. In addition, for both the service-connected disability and its opposite joint the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use, and the point in ROM where pain starts. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, for both the service-connected disability and its opposite joint the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the Veteran indicated at the August 2017 hearing that he experiences tingling in his right arm down to his fingertips. The examiner should address this claim and any other neurological symptoms. A detailed rationale is requested for all opinions provided. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E. I. VELEZ 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).