Citation Nr: 1804730 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-28 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease, residuals, status post injury to the left knee. 2. Entitlement to an increased rating in excess of 10 percent for osteochondritis dissecans, left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from September 1984 to July 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's October 2011 substantive appeal, he requested a travel Board hearing; however, he subsequently withdrew this request in correspondence received in January 2015. Subsequently, the Veteran's representative noted his hearing request in July 2017 correspondence. As such, in a September 2017 letter the Veteran was notified of his scheduled hearing. However, the Veteran failed to appear as scheduled. As the Veteran was properly notified of the time, date and location of his scheduled hearing and failed to appear, his hearing request is deemed withdrawn. This appeal includes documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. These records were reviewed in connection with the decision outlined below. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional evidentiary development is required before the issues on appeal are adjudicated. The Veteran was afforded a VA examination in June 2017. However, the Board notes that the June 2017 VA examiner did not report whether testing of the knee was performed on active and passive motion, and in both weightbearing and non-weightbearing. 38 C.F.R. § 4.59 (2017) provides that, with respect to painful motion and arthritis, the joints involved should be tested for pain on both active and passive motion, in weightbearing and non-weight bearing if possible, and if possible, with the range of the opposite undamaged joint. Id. The United States Court has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). Moreover, the Board notes that in December 2017 correspondence; the Veteran's representative argued that he had painful motion during the entire June 2017 examination that was not noted. For these reasons, a new examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examination to determine the symptoms and severity of his service-connected left knee disabilities. Access to the electronic claims file should be made available to the examiner for review. All tests and studies deemed necessary by the examiner should be performed. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joints in question and any paired joint. If 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. The examiner should report the ranges of knee motion in degrees. The examiner should also report whether the left knee disabilities are manifested by weakened movement, excess fatigability, incoordination, pain, of flare-ups. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also report whether there is lateral instability or recurrent subluxation, and if present, the severity of such symptoms. 2. To help avoid future remand, VA must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the matter is returned to the Board. See Stegall, 11 Vet. App. 268. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the remaining claims on appeal. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for future review. The appellant 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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) (2016).