Citation Nr: 1805824 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-35 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left knee. 2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A Notice of Disagreement (NOD) was filed in June 2013. A Statement of the Case (SOC) was issued in October 2013. A substantive appeal (VA Form-9) was filed in November 2013. In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. The Veteran contended that he has difficulty falling asleep due to his service-connected bilateral knee condition as reflected in an August 2012 Knees and Lower Leg Condition Disability Benefits Questionnaire (DBQ). This matter is referred to the AOJ for any action deemed appropriate. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appealed issues of an increased rating for degenerative joint disease (DJD) of the left and right knees, currently rated as 10 percent disabling. The Veteran contends that he is entitled to a higher initial disability rating for his service-connected bilateral knee DJD. The Veteran was afforded a VA examination in February 2013. The Veteran was diagnosed with bilateral knee DJD. The Veteran reported flare-ups that caused limited walking, sitting, and standing. Right knee range of motion (ROM) testing revealed flexion to 100 degrees with pain at 85 degrees and extension to 0 degrees. Left knee ROM was flexion to 105 degrees with pain at 80 degrees and extension to 0 degrees. The Veteran exhibited normal bilateral knee flexion/extension after repetitive use testing. The Veteran reported functional loss such as less movement than normal, excess fatigability, painful movement, and interference with sitting. There was also pain on palpation of the bilateral knee. Muscle strength, sensory, and reflex testing was normal. There was no objective evidence of subluxation or dislocation of the bilateral knee. The Board finds the February 2013 VA examination inadequate and requires a new examination to determine the extent and severity of the Veteran's bilateral knee DJD. The Court of Appeals for Veterans Claims (Court) recently held in Correia v. McDonald, 28 Vet. App. 158 (2016), 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. In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id. A review of the claims file reveals that the prior VA examination report includes only active range of motion findings and does not include range of motion findings for passive range of motion. It also does not specify whether the results are weight-bearing or nonweight-bearing. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the level of impairment due to his service-connected bilateral knee DJD. The electronic claims file and copy of this Remand must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. (a) In order to comply with Correia, the examiner must test and record the range of motion for bilateral knee DJD in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. (b) In regard to flare-ups, and if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. 2. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto 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 (2012). ______________________________________________ TANYA SMITH 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).