Citation Nr: 1804430 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-26 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for arthritis of the right knee prior to September 16, 2013, and in excess of 30 percent for right total knee arthroplasty effective November 1, 2014. 2. Entitlement to a disability rating in excess of 10 percent for arthritis of the left knee, status post surgery with residual scars prior to June 18, 2013, and in excess of 30 percent for left total knee arthroplasty effective August 1, 2014. 3. Entitlement to a compensable disability rating for a left knee condition with post-surgical subluxation from November 15, 2010, through June 18, 2013. REPRESENTATION Veteran represented by: Mary M. Long, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1981 and from January 2004 to January 2006 with additional periods of service in the Army Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran testified at a Board hearing before the undersigned. In January 2015 and October 2016, the Board remanded this matter for further evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its most recent remand, the Board noted that a September 2015 VA examination was inadequate, as the examination report did not contain all of the range of motion findings necessary for the Board to competently determine the appropriate disability rating for the Veteran's service-connected right and left knee disabilities. Specifically, the VA examination report did not provide the necessary active motion, passive motion, weight-bearing, and nonweight-bearing information as required under the recent case Correia v. McDonald, 28 Vet. App. 158 (2016). As such, the Board remanded the claims for additional examinations so that an examiner could provide range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. The Veteran was provided VA examinations in December 2016 and August 2017. Although the examiner addressed pain on weight-bearing, he did not provide range of motion measurements in nonweight-bearing, active, or passive movement. There is only one range of motion listed and it is simply described as "initial", thus, it is unclear to the Board if range of motion testing for pain was done in both active and passive motion. There is also no indication of whether there is pain with nonweight-bearing. The examiner appears to have simply added a comment to the end of the examination report that says that joint testing was done in compliance with Correia, but this is insufficient for the reasons explained. Additionally, when asked to describe if pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, the examiner stated that he was unable to say without mere speculation, stating that there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The Board finds the VA examination to be inadequate because the examiner "failed to ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means" and then "estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information." Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As noted by the Court in Sharp, such findings are contemplated by the VA Clinician's Guide. As such, a new VA examination is also necessary to properly assess the severity of the Veteran's knee disabilities as pertaining to the Veteran's functional limitations and additional limitation of motion due to flare-ups. As such, the Veteran should be provided with a new VA examination including these range of motion measurements. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to determine the severity of his service-connected knee disabilities. The examiner must record the results of range of motion testing for pain on both active and passive motion and in nonweight-bearing movement. If for some 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. In addition, the examiner must address any additional functional impairment or limitation of motion due to flare-ups, even if the Veteran is not currently experiencing a flare-up. The examiner must ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means, such as the medical treatment records and the Veteran's lay statements. Such findings are consistent with the VA Clinician's Guide. 2. Following any additional indicated development, the originating agency should review the claims file and readjudicate the issues on appeal. If a benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned 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 (West 2014). _________________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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) (2017).