Citation Nr: 18141252 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-43 620 DATE: October 10, 2018 REMANDED Entitlement to a disability rating in excess of 20 percent for spondylotic changes of the lumbar spine is remanded. Entitlement to a disability rating in excess of 10 percent for left knee arthroscopic surgery residuals is remanded. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for spondylotic changes of the lumbar spine is remanded. 2. Entitlement to a disability rating in excess of 10 percent for left knee arthroscopic surgery residuals is remanded. Although the Board regrets the further delay, a remand is required for additional development and further adjudicative action. The Veteran was last afforded VA examinations to assess the severity of his lumbar spine disability and left knee disability in August 2015, over three years ago. In his August 2016 VA Form 9 (Substantive Appeal), the Veteran requested a new examination for his lumbar spine disability. He also indicated that he sought “constant treatments, therapy, and medications” through the VA Healthcare System for his lumbar spine disability and his left knee disability, suggesting that they have worsened in severity. Notably, the U.S. Court of Appeals for Veterans Claims recently determined that the final sentence of 38 C.F.R. § 4.59 (2017) requires that VA examinations include joint testing for pain on active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The August 2015 VA examination reports do not contain all the required range of motion testing. Accordingly, examination reports which include this required testing, or an explanation for why the required testing cannot be performed, must be completed on remand. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board. 2. Afford the Veteran the appropriate VA examination to assess the current severity of his spondylotic changes of the lumbar spine. The examination results should be recorded using the most recent version of the VA Thoracolumbar Spine Conditions Disability Benefits Questionnaire. All pertinent evidence of record should be made available to and reviewed by the examiner. The examiner must ascertain from the Veteran and document in the examination report adequate information regarding the frequency, duration, characteristics, severity, and/or functional loss during flare-ups or on repetitive use. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). All required testing, to include range of motion testing, must be performed. Both passive and active range of motion testing should be performed, in weight-bearing and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct any of the required testing, he or she must explain why this is so. The examiner must provide a rationale for all opinions requested, to include all those listed on the Disability Benefits Questionnaire. Consideration must be given to the medical evidence of record as well as the Veteran’s lay statements. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. Afford the Veteran the appropriate VA examination to assess the current severity of his left knee arthroscopic surgery residuals. The examination results should be recorded using the most recent version of the VA Knee Conditions Disability Benefits Questionnaire. All pertinent evidence of record should be made available to and reviewed by the examiner. All required testing should be performed. The examiner must ascertain from the Veteran and document in the examination report adequate information regarding the frequency, duration, characteristics, severity, and/or functional loss during flare-ups or on repetitive use. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). All required testing, to include range of motion testing, must be performed. Both passive and active range of motion testing should be performed, in weight-bearing and nonweight-bearing, on both the damaged and undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct any of the required testing, he or she must explain why this is so. The examiner must provide a rationale for all opinions requested, to include all those listed on the Disability Benefits Questionnaire. Consideration must be given to the medical evidence of record as well as the Veteran’s lay statements. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. The Veteran is informed that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 5. The AOJ must review the examination reports and all opinions to ensure they are complete, adequate, and comply with the Board’s specific remand directives. Specifically, the AOJ should ensure that: (a) The examiners elicited from the Veteran adequate information regarding the frequency, duration, characteristics, severity, or functional loss regarding flare-ups or on repetitive use of the joint; (b) All required range of motion testing was performed or, if not, that there is an adequate explanation as to why any testing could not be performed; (c) All opinions on the appropriate Disability Benefits Questionnaires are supported with an adequate rationale and, if any opinion cannot be formulated without speculation, that there is an explanation for why this is so. If any of the examination reports or opinions are deficient in any manner, corrective action must be taken at once. (CONTINUED ON NEXT PAGE) 6. Then, the Veteran’s claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel