Citation Nr: 1805931 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-21 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service connected post fracture left femur with scars and knee disability. 2. Entitlement to a compensable disability rating for service connected right hand disability. REPRESENTATION Veteran represented by: Joydee Kayton, Attorney ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1976 to February 1980. This matter is before the Board of Veterans' Appeal (Board) on appeal from an October 2010 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Louisville. Kentucky. In December 2015, the Board remanded this matter for further development, and the case has been returned for appellate consideration. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is seeking an increased rating in excess of 10 percent disabling for his service connected post fracture left femur with associated scars and knee disability, and a compensable rating for his service connected right hand disability. Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of these claims. The Veteran's claim was recently remanded in December 2015. The Board directed the AOJ to schedule the Veteran for VA examinations to determine the current severity of his service-connected of his service connected right hand arthritis and residuals of a left femur fracture. The Veteran's service connected residuals of a left femur fracture is rated under Diagnostic Code, 5255, which contemplates the level of any hip or knee disability in relation to the left femur fracture disability. 38 C.F.R. § 4.71a, Diagnostic Code 5255. Therefore, the December 2015 Remand requested that the Veteran's hips and knees be examined, along with his right hand. The Veteran was provided with those examinations in July 2017. However, in light of the U.S. Court of Appeal for Veteran's Claims (Court) decision in Corriea v. McDonald, 28 Vet. App. 158 (2016), the Board finds that the previous examinations are inadequate. In Correia, the Court found that under 38 C.F.R. § 4.59, a VA examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing (as appropriate), and, if possible, with rating of motion measurements of the opposite undamaged joint. To date, the Veteran has not been afforded a VA examination that includes such testing. As such, per Corriea, the examinations are inadequate and a remand is necessary to afford the Veteran an adequate examination. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). The July 2017 right hand, knee, and hip VA examinations include range-of-motion measurements, whether there was evidence of pain on passive range of motion, and whether there was pain with non-weight bearing. However, the reports do not specify whether the range-of-motion measurements were taken on active motion, on passive motion, on weight-bearing, or on nonweight-bearing. In addition, the examiner did not indicate that whether the Veteran was unable to perform range-of-motion testing on active, passive, weight-bearing, and nonweight-bearing or that such testing was not necessary. Therefore, the examination report does not make clear the extent to which pain affects the Veteran's passive, active, weight-bearing, and nonweight-bearing motion of his left hip. In view of the above, the July 2017 VA examinations are inadequate for rating purposes. The Veteran must therefore be afforded new VA examinations that includes all of the necessary information as set forth in 38 C.F.R. § 4.59. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for VA examinations to determine the current nature and severity of his service connected right hand disability and residuals of a left femur fracture. The examinations should include all studies, tests, and evaluations deemed necessary by examiner. The examiner should report all manifestations relate to the disabilities. The record and copy of this remand must be made available to and reviewed by the examiner. The examiner must address the following: (a) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), and 38 C.F.R. § 4.59 (2017), the examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the left knee, left hip, and right hand. The examiner should also determine whether the Veteran's right knee, right hip, and left hand are undamaged. If the right knee, right hip, and left hand are undamaged, the examiner should also record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the right knee, right hip and left hand. 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. For the examination of the knee, the examination results should be recorded using VA Form 21-0960M-9, May 2013, Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ), or any other form or DBQ that provides all of the same information as "Section V - Pain" of VA Form 21-0960M-9, May 2013. For the examination of the hand and fingers, the examination results should be recorded using VA Form 21-0960M-7, May 2013, Hand and Finger Conditions Disability Benefits Questionnaire (DBQ), or any other form or DBQ that provides all of the same information as "Section V - Pain" of VA Form 21-0960M-7, May 2013. For the examination of the hip, the examination results should be recorded using VA Form 21-0960M-9, May 2013, Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ), or any other form or DBQ that provides all of the same information as "Section V - Pain" of VA Form 21-0960M-9, May 2013. In recording the ranges of motion for the Veteran's knees hips and hands, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. The examiner should also indicate whether the Veteran experiences additional functional loss during flare-ups of the service-connected right hand disability. If there is no pain, no limitation of motion, and/or no limitation of function, such must be noted in the report. (b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups in the right hand, left knee, and left hip. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. The examiner must provide a complete rationale for any opinion expressed. If the any requested opinion cannot be provided without resort to speculation, the examiner must explain why the opinion cannot be offered, and state whether the inability is due to the absence of specific evidence or is due to the limits of scientific or medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). If the inability is due to the absence of evidence, then the examiner should state what evidence would be needed for an opinion to be provided. 2. After completion of the above, review the expanded record. If any benefit sought remains denied, then issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. A reasonable period should be allowed for response before the appeal is returned to the Board. The Veteran 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 is 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). _________________________________________________ MICHAEL MARTIN 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).