Citation Nr: 1804377 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-49 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for right knee degenerative arthritis, evaluated as 30 percent disabling prior to July 2, 2009; 20 percent disabling from July 2, 2009 to September 8, 2009; and 10 percent disabling from November 1, 2009. 2. Entitlement to an increased rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears, evaluated as 10 percent disabling prior to September 9, 2009, and noncompensably disabling from November 1, 2009. REPRESENTATION Veteran is represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1988 to October 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied a compensable rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears, and granted a separate 10 percent rating for right knee degenerative arthritis, effective July 15, 2008. In a May 2010 rating decision, a temporary 100 percent rating was granted for residuals of a right knee injury with anterior cruciate ligament and meniscal tears from September 9, 2009 to November 1, 2009, and a noncompensable rating was assigned thereafter. In March 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was initially before the Board in August 2013, at which time it was remanded for further development. In a March 2015 decision, the Board granted a 30 percent rating for right knee degenerative arthritis prior to July 2, 2009; granted a 20 percent rating for right knee degenerative arthritis from July 2, 2009 to September 8, 2009; denied a rating in excess of 10 percent for right knee degenerative arthritis from November 1, 2009; granted a 10 percent rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears prior to September 9, 2009; and denied a compensable rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears from November 1, 2009. Thereafter, the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a January 2017 Joint Motion for Partial Remand (Joint Motion), the parties agreed that the Board erred in relying on VA examination reports from September 2008 and November 2013. The parties moved the Court to vacate the Board's March 2015 decision, except insofar as it was favorable to the Veteran. In a January 2017 order, the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. In April 2017, the Board remanded the claims in order to conduct additional development in accordance with the terms of the Joint Motion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Subsequent to the Board's March 2015 decision, the Court held that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include "range of motion testing 'for pain on both active and passive motion [and] weight-bearing and nonweight-bearing and if possible, with range of the opposite undamaged joint.'" Correia v. McDonald, 28 Vet. App. 158, 170 (2016) (quoting 38 C.F.R. § 4.59). In the January 2017 Joint Motion, the parties agreed that the VA examinations of record did not include range of motion testing with weight-bearing, nor did the examiners explain why such testing could not be performed, as required by Correia. In April 2017, the Board remanded the claims in order to provide the Veteran with a new VA examination. In doing so, the Board directed the examiner to test range of motion on weight-bearing or explain why such testing could not be conducted. The Veteran underwent a VA examination in May 2017, during which he reported right knee pain with weight-bearing. However, the examination did not include range of motion testing on weight-bearing, nor did the examiner explain why such testing could not be performed, as required by Correia and the terms of the Joint Motion and prior Board remand. Therefore, the Board finds that remand is necessary in order to conduct a VA examination which includes range of motion testing on weight-bearing, if possible. See Stegall v. West, 11 Vet. App. 268 (1998). Relevant ongoing medical records should also be requested. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical care providers who have recently treated his service-connected knee disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected knee disabilities. The electronic claims file must be reviewed by the examiner. All indicated testing must be conducted, and all pertinent symptomatology must be reported in detail. The examiner should report all range of motion measurements in degrees for both knees actively and passively, on weight-bearing and nonweight-bearing, and after repetitive use. The examiner should also consider whether there is likely to be additional range of motion loss as a result of pain, weakness, fatigability, or incoordination, or during flare-ups and describe the additional loss in terms of degrees, if possible. The examiner must conduct range of motion testing on weight-bearing or explain why such testing could not be conducted. 3. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. 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 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). _________________________________________________ K. A. BANFIELD 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).