Citation Nr: 1805232 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 11-16 073 ) 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 degenerative joint disease of the left knee status-post arthroscopy and meniscal debridement. 2. Entitlement to an initial compensable rating in excess of 10 percent for arthralgia of the right knee. REPRESENTATION Veteran represented by: The American Legion 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 Army from July 2006 to October 2007 and December 2007 to October 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was assigned a 100 percent convalescent rating beginning on November 30, 2010, for a left knee arthroscopy. An April 2011 rating decision increased the base rating for the Veteran's left knee disability to 10 percent, as of February 1, 2011. A December 2015 rating decision increased the rating for the Veteran's right knee disability to 10 percent, as of January 4, 2013. In November 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND This case requires remand to afford the Veteran a new examination of both knees. At the November 2017 hearing, the Veteran stated that his knee symptoms have worsened since his most recent VA examination in December 2015. In particular, he testified that he now experiences continuous pain, has difficulty sleeping at night due to knee pain, and experiences swelling, popping, cracking, and grinding in both knees. He requested separate ratings for knee instability and locking because his knees give out or lock up, causing him to fall. He testified that he uses braces to stabilize his knees. Furthermore, the Board notes In a recent case, the United States Court of Appeals for Veterans Claims (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 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that "[t]he 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." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. The December 2015 DBQ noted that there was pain on weight bearing but did not indicate if such weight bearing had any effect on the range of motion. Furthermore the examination did not provide findings for both active and passive range of motion. The Board's review of the record shows that medical findings adequate for adjudication purposes have not been taken or recorded since December 2015. 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). Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination to evaluate the severity of his bilateral knee disabilities. The examiner should review the entire claims file, including the hearing transcript. All indicated studies, tests, x-rays, and evaluations deemed necessary should be performed. The examiner should comment on the claimant's lay statements regarding his knee symptoms, including allegations of knee instability and locking. The VA examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the VA examiner should indicate the point at which pain begins. In addition, with respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). 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. §§ 5109B, 7112 (2012). _________________________________________________ H. SEESEL 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).