Citation Nr: 18151307 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-24 068 DATE: November 20, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. Entitlement to an initial rating in excess of 20 percent for a thoracolumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1994 to December 1996 and from January 2002 to May 2003. This appeal arose to the Board of Veterans’ Appeals (Board) from a May 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. During the pendency of this appeal, in an April 2016 rating decision, a higher initial10 percent rating was granted for right and left knee disabilities, effective July 2013 (under Diagnostic Code 5260). Because higher initial ratings are available and the Veteran is presumed to seek the maximum available benefit, the claims for higher initial ratings for right and left knee disabilities remains on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to initial ratings in excess of 10 percent for left and right knee disabilities is remanded. The Veteran contends that he is entitled to initial ratings in excess of 10 percent for his left and right knee disabilities. The RO granted service connection and noncompensable ratings for these disabilities in a May 2014 rating decision, to which the Veteran responded with an August 2014 Notice of Disagreement. The RO then awarded the Veteran higher initial 10 percent ratings for his right and left knee disabilities via an April 2016 rating decision. However, the RO neglected to furnish the Veteran a Statement of the Case (SOC) responding to the Veteran’s claim for a higher rating. As such, a remand is in order for the VA to issue an SOC to the Veteran. See Manlincon v. West, 12 Vet. App. 238 (1998). 2. Entitlement to an initial rating in excess of 20 percent for a thoracolumbar spine disability is remanded. The Veteran contends that he is entitled to an initial rating in excess of 20 percent for a thoracolumbar spine disability. He most recently underwent a VA examination for this disability in April 2014. At that time, the Veteran’s range of motion was not tested in active motion, passive motion, weight-bearing, and nonweight-bearing activities. Without such measurements, the Board cannot adequately assess the Veteran’s back disability. Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that additional requirements must be met prior to finding that a VA examination is adequate). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate VA examiner to determine the nature and severity of the Veteran’s thoracolumbar spine disability. The examiner is particularly asked to discuss the following: Test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and non-weightbearing. 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 what that is so. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his spine symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (Continued on the next page)   2. Issue the Veteran an SOC, to include notification of the need to timely file a Substantive Appeal, regarding the issues of entitlement to initial ratings in excess of 10 percent for left and right knee disabilities. These issues shall not be returned to the Board unless a sufficient substantive appeal is submitted. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel