Citation Nr: 1804307 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-22 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial compensable rating in excess of 10 percent for right shoulder arthritis. 2. Entitlement to an initial compensable rating in excess of 10 percent for left ankle arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Jones III, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1976 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Appeals Management Center (AMC) of the Department of Veterans Affairs (VA). Jurisdiction over the case has since been transferred to the Indianapolis, Indiana, VA Regional Office (RO). In April 2012, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). Because that VLJ retired, the Veteran was notified in July 2017 of his right to testify before another VLJ prior to the Board deciding his appeal. The Veteran exercised this right and testified at a Board hearing before the undersigned VLJ in October 2017. Transcripts of both hearings are associated with the claims file. The Veteran requested in September 2010 that his service connection case be advanced on the docket due to financial hardship. Although that motion was not ruled on at the time, the Veteran was granted service connection in October 2010, thus making the motion moot. The undersigned VLJ took the precaution of ruling on the motion once again in January 2018, denying it for absence of specific evidence showing hardship but allowing the Veteran to submit additional evidence to support the motion should he choose to do so. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND This case requires remand to afford the Veteran new examinations of his right shoulder and left ankle. In his appellate brief of March 2017, the Veteran's representative requested that the Board remand the appeal for new VA examinations, as the last examinations were performed in January 2014 and the Veteran has alleged worsening since that time. At the October 2017 hearing, the Veteran testified that he could only move his right arm parallel with the ground and that his ankle sometimes gives out while he is walking. These constitute allegations of worsening. When a claimant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination is appropriate. Snuffer v. Gober, 10 Vet. App. 400 (1997). Further, remand is needed for VA examinations compliant with a recent precedential decision of the United States Court of Appeals for Veterans Claims (Court). In that case, Correia v. McDonald, the Court held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 U.S.C. § 4.59. 28 Vet. App. 158 (2016). That sentence directs that the 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. The January 2014 examinations did not include all the required testing pursuant to § 4.59 and Correia. Accordingly, the case is REMANDED for the following actions: 1. Arrange for the Veteran to undergo VA examinations to evaluate the severity of his right shoulder and left ankle disabilities. The joints 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. Range of motion for the joints should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. If for any reason 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. 2. After ensuring that the requested actions are completed, VA should conduct any other development actions deemed warranted and readjudicate the claim on appeal. If the benefit sought is not fully granted, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. 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 (2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).