Citation Nr: 1804079 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-24 725 ) ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for left knee instability. 2. Entitlement to a disability rating in excess of 10 percent for left knee limitation of motion related to osteoarthritis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bates, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1986 to June 1991. These matters come before the Board of Veterans' Appeals (Board) from an October 2013 rating decision by the RO. In September 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript of that proceeding has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran reportedly received examinations of her left knee in September and April 2017. See Hearing Transcript, 6-7 (Sept. 28, 2017). The Board observes that the record only contains an examination report from April 2017. See VA Examination, 1-22 (Apr. 28, 2017). Notably, she testified during her hearing that the April 2017 examiner failed to perform a physical examination of her left knee. See Hearing Transcript, 7-8 (Sept. 28, 2017). In light of the Veteran's credible testimony, the Board finds that her most recent examination of record is inadequate to fairly adjudicate her claim. Once VA provides an examination, it must provide an adequate one; consequently, a remand for a new VA examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2016), pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate where the examiner declined to provide an estimate of the degree of additional loss of motion due to flare-ups because such would require resort to speculation). Moreover, the Court has held that the joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to the claim on appeal. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of her left knee disability. If possible, the examiner should not be the one that performed the April 2017 examination. The Veteran's electronic claims file should be made available to and reviewed by the new examiner. The AOJ should ensure that the examiner provides all information required for rating purposes-including findings required by Sharp and Correia as discussed above. 3. Then, re-adjudicate the issues on appeal. If any of the benefits sought are not granted in full, issue the Veteran and her representative a supplemental statement of the case and return the appeal to the Board. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ H.M. WALKER 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).