Citation Nr: 1805678 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-02 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected patellofemoral syndrome of the left knee (herein left knee disability). REPRESENTATION Veteran represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1998 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board remanded this claim in February 2013 and January 2017. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board remanded this claim in January 2017, in part, to afford the Veteran a VA examination, which was conducted in April 2017. The United States Court of Appeals for Veterans Claims (Court) has 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). The referenced portion of 38 C.F.R. § 4.59 (2017) 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." The April 2017 VA examination did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information pursuant to Correia. The Board notes that the April 2017 VA Disability Benefits Questionnaire (DBQ) contained a section that noted that there was no "evidence of pain on passive range of motion testing" and that there was no "evidence of pain when the joint is used in non-weight bearing." While it appears that this was an attempt to comply with Correia, as quoted above the Court specifically stated in that case 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 and additionally that "the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." The Court specifically stated that "range of motion testing" was required and the information provided by the April 2017 VA DBQ regarding a lack of evidence of pain on passive range of motion and in non-weight bearing failed to provide the information required pursuant to Correia, as range of motion results were not provided on both active and passive motion, in weight-bearing and nonweight-bearing. In addition, the examiner noted on the April 2017 DBQ, with respect to the left knee, that they were "[u]nable to say [without] mere speculation" whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups (which were noted as reported by the Veteran). The examiner did not provide an adequate explanation as to why this was the case. The Court stated in Sharp v. Shulkin, 29 Vet. App. 26 (2017), in regards to a VA examination report's discussion of flare-ups, that "[b]ecause the VA examiner did not ...estimate the [V]eteran's functional loss due to flares based on all the evidence of record-including the [V]eteran's lay information-or explain why she could not do so, the...examination was inadequate." As such, while on remand, the requested VA opinion must also contain adequate information pursuant to Sharp. Further, the January 2017 Board remand directives included a variety of specific items that the examiner was requested to address. One item stated to "[c]omment on the range of motion findings shown on the December 2008 Functional Capacity Assessment and indicate whether they are consistent with subsequent findings." In a May 2017 addendum opinion, the April 2017 VA examiner provided an opinion that discussed a different portion of the December 2008 Functional Capacity Assessment and did not discuss the range of motion findings, as requested. This raises an issue as to substantial compliance with the January 2017 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). On remand, the examiner will be asked to address this issue. Finally, while on remand, all outstanding VA treatment records must be obtained (the most recent VA treatment records of record are dated in February 2017 and a January 2017 note reflected treatment of the left knee). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records (the most recent VA treatment records of record are dated in February 2017). 2. Afford the Veteran an appropriate VA examination to determine the severity of his left knee disability. 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)), to include the opposite undamaged joint (the right knee). If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. Further, the examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran. The examiner must either estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information or explain why they cannot do so. The examiner's determination in this regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner is also asked to address the following: Comment on the range of motion findings shown on the December 2008 Functional Capacity Assessment and indicate whether they are consistent with subsequent findings. All findings and conclusions should be accompanied by a complete rationale. 3. After completing the requested actions, readjudicate the claim in light of all pertinent evidence. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J.W. FRANCIS 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).