Citation Nr: 1806025 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 13-28 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for right knee strain status post right knee arthroscopic surgery and synovitis ("right knee disability"). 2. Entitlement to an increased rating in excess of 10 percent for degenerative arthritis of lumbar spine to include lumbar spondylolisthesis ("lumbar spine disability"). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1976 to October 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Atlanta Regional Office (RO) in Georgia. The Veteran testified before a Decision Review Officer (DRO) in June 2013 and before the undersigned Veterans Law Judge in a January 2017 video conference hearing. Transcripts of both hearings have been associated with the file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A review of the evidence reveals that the examinations of the Veteran's claimed disabilities do not contain all the information as found necessary by the holdings of the Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning range of motion findings and flare-ups. Accordingly, another examination of the Veteran is indicated. Prior to obtaining a new VA examination and opinion, any outstanding, pertinent VA outpatient treatment records and identified private treatment records should be obtained. The most recent VA outpatient treatment records on file appear to be from December 2015. The most recent private treatment records on file appear to be from February 2017. Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, attempt to obtain and associate with the file any additional relevant outstanding records of treatment. (Notably, the most recent VA outpatient treatment records on file appear to be from December 2015, and the most recent private treatment records on file appear to be from February 2017.) 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service connected right knee disability. The Veteran's electronic claims file should be made available to and reviewed by the examiner. The examiner is asked to administer all appropriate testing to determine the level of impairment. The examiner is asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the joints in question. See Correia v. McDonald, 28 Vet. App.158 (2016). If the examiner is unable to conduct the requested testing or concludes that the testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should inquire as to periods of flare-up, and note the frequency and duration of any flare-ups. As required by the Court's holding in Sharp, the examiner should estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. [The Court explained that case law and VA guidelines anticipate that examiners will offer flare-up opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares.] The examiner should provide a complete rationale for any opinions expressed. 3. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service connected lumbar disability. The Veteran's electronic claims file should be made available to and reviewed by the examiner. The examiner is asked to administer all appropriate testing to determine the level of impairment. The examiner is asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, if possible, for the joints in question. See Correia v. McDonald, 28 Vet. App.158 (2016). If the examiner is unable to conduct the requested testing or concludes that the testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also identify the functional impairment caused by the Veteran's lumbar disability, including on flare-ups if those are mentioned. The examiner should provide a complete rationale for any opinions provided. 4. After completion of the above and any further development deemed necessary by the AOJ, the claims should be re-adjudicated. If any benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. 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 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). _________________________________________________ MICHAEL E. KILCOYNE 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).