Citation Nr: 1805729 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 13-03 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating higher than 10 percent for left knee posttraumatic arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Labi, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to April 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana This matter was previously before the Board in February 2017 when it was remanded for a hearing. The Veteran testified before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing is of record. This matter was again before the Board in September 2017 when it was remanded for further development and an appropriate VA examination. The Board finds that there has not been substantial compliance with its remand. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his service-connected left knee disability is more disabling than currently evaluated. In his May 2017 hearing, the Veteran testified that his disability had worsened since his July 2014 examination. The Veteran reported an increase in pain and a decrease in his ability to bend his left knee, noting flare-ups twice a week. The Board remanded the issue to obtain outstanding VA treatment records and to afford the Veteran with a new VA examination to determine the current severity of the Veteran's service-connected left knee disability. Accordingly, VA treatment records were obtained and associated with the claims file, and the Veteran underwent a VA examination for his left knee disability in September 2017. Unfortunately, the Board finds that the examination provided is not sufficient to determine whether the Veteran's left knee disability has worsened since the previous examination. In Correia v. McDonald, 28 Vet. App. 158 (2017), the United States Court of Appeals for Veterans Claims (Court) 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. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the record reveals that the September 2017 VA examination report indicates that both knees were tested. While the Veteran reported flare-ups twice a week in the May 2017 hearing, the examiner noted that the Veteran did not report flare-ups and noted them as "not applicable." The examiner noted that there was no evidence of pain on weight bearing but does not indicate whether testing was completed on active or passive motion. The examination report indicates range of motion findings of the right knee but indicates that range of motion testing of the left knee was not completed because the Veteran "did not fulfill the requirements for an adequate evaluation." The examiner further noted that an accurate determination of range of motion of the left knee could not be made, explaining that "the range of motion of the left knee varied markedly at different times during the examination. This variation is not physiologic and is not explained by his knee condition." The Board finds that the examiner does not clearly explain his determination that the range of motion testing could not be completed. It is unclear what the examiner meant when noting that the Veteran did not "fulfill the requirements for an adequate evaluation," nor did he indicate any range of motion findings and how they varied during the examination. In light of the fact that the examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59 and due to an inadequate explanation of the examiner's findings, the September 2017 VA examination is inadequate. Thus, the Veteran must be afforded a new VA examination for his left knee disability before a decision can be rendered on his claim. As the Board finds the September 2017 VA examination inadequate for rating purposes, the Board finds that the development conducted does not adequately comply with the directives of the September 2017 remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Veteran must be scheduled for a VA examination to determine the severity of the Veteran's service-connected left knee disability. The Board previously noted that at his May 2017 hearing, the Veteran indicated that he received Social Security benefits based on his back and knee. The Board noted that the December 2002 SSA disability determination contradicted his statement. The Board noted that the SSA records and their supporting medical evidence were previously associated with the claims file in October 2009 and the Veteran had not identified outstanding SSA records. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination with an examiner who has not previously examined him to determine the nature and extent of the service-connected left knee disability. The examiner must review the claims file in conjunction with the examination. The examiner should describe the nature and severity of all manifestations of the Veteran's service-connected left knee disability. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he or she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. The examiner is hereby informed that the Veteran has testified under oath that he experiences flare-ups of his knee symptoms and the examiner must address the additional impairment that occurs during flare-ups. A statement that the examiner could not do so without resorting to speculation because a flare-up was not observed will not be an adequate opinion. Rather, the examiner must elicit information from the Veteran regarding his flares' severity, frequency, duration, or functional loss manifestations, and indicate whether additional information could be gleaned from medical records or other sources available to the examiner. In order to comply with the Court's recent decision in Correia, the examiner must test the range of motion for both knees in active motion, passive motion, weight-bearing, and nonweight-bearing, as appropriate and must indicate whether such testing was accomplished. 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. Also, the examiner must comment on the functional impairment caused by the Veteran's left knee disability. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim must be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted in full, the AOJ must issue a supplemental statement of the case, allow an appropriate opportunity to respond, and then return the appeal to the Board, if otherwise in order. 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 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). _________________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).