Citation Nr: 18153142 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 14-25 857 DATE: November 27, 2018 REMANDED 1. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease (DDD) is remanded. 2. Entitlement to a rating in excess of 10 percent for left knee instability is remanded. 3. Entitlement to a rating in excess of 20 percent for right foot first metatarsal phalangeal implant, to include hallux valgus, hallux rigidus, and degenerative joint disease (DJD) of the first metatarsophalangeal joint is remanded. 4. Entitlement to a rating in excess of 10 percent for chronic rhinitis is remanded. 5. Entitlement to a rating in excess of 10 percent for a right toe scar is remanded. 6. Entitlement to a compensable rating for a right toe residual scar is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1979 to September 1983 and from December 2003 to March 2005. These matters are before the Board of Veterans’ Appeals (Board) on appeal from May 2013 (that granted service connection for right toe scar rated 10 percent and right toe residual scar rated 0 percent, both effective August 30, 2012, and continued the 20 percent rating assigned for lumbar spine DDD and the 20 percent rating assigned for a right foot disability) and July 2014 (that continued the 10 percent ratings assigned for left knee instability and chronic rhinitis) rating decisions. 1., 2. Entitlement to a rating in excess of 20 percent for lumbar spine DDD and a rating in excess of 10 percent for left knee instability is remanded. Regarding the ratings for the lumbar spine and left knee disabilities, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (CAVC) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The March 2013 (lumbar spine) and May 2014 (knee) VA examination reports do not comply with Correia. Therefore, a new examination to ascertain the current severity of the disabilities and address the Correia deficiencies is necessary. 3. Entitlement to a rating in excess of 20 percent for right foot first metatarsal phalangeal implant, to include hallux valgus, hallux rigidus, and DJD of the first metatarsophalangeal joint is remanded. The most recent VA examination to evaluate the Veteran’s right foot disability was in March 2013. In an October 2018 statement, the Veteran’s representative indicated that his right foot disability had worsened. In light of the allegation of worsening of the right foot disability, and the 5-year interval since the Veteran was last examined, a contemporaneous examination to ascertain the severity of the right foot disability is necessary. 4. Entitlement to a rating in excess of 10 percent for chronic rhinitis is remanded. The most recent VA examination to evaluate the Veteran’s chronic rhinitis was in May 2014. In an October 2018 statement, the Veteran’s representative indicated that his chronic rhinitis had worsened. In light of the allegation of worsening of the rhinitis, and the 4-year interval since the Veteran was last examined, a contemporaneous examination to ascertain the severity of the chronic rhinitis is necessary. 5., 6. Entitlement to a rating in excess of 10 percent for a right toe scar and a compensable rating for a right toe residual scar is remanded. The most recent VA examination to evaluate the Veteran’s right toe scars was in March 2013. In an October 2018 statement, the Veteran’s representative indicated that his scars had worsened. In light of the allegation of worsening of the scars, and the 5-year interval since the Veteran was last examined, a contemporaneous examination to ascertain the severity of the scar disabilities is necessary. As the record reflects that the Veteran continues to receive ongoing VA treatment for the disabilities on appeal, and records of such treatment may contain pertinent information, outstanding records of the treatment must be obtained and considered. Notably, VA records are constructively of record. The matters are REMANDED for the following: 1. Secure for association with the record all outstanding records of VA treatment the Veteran has received for the disabilities on appeal from October 2017. If any such records are unavailable, the reason for their unavailability must be explained for the record, and the Veteran should be so advised. 2. Arrange for the Veteran to be examined by an appropriate clinician to assess the current severity of his lumbar spine, left knee, and right foot disabilities. The entire record must be reviewed by the examiner in conjunction with the examination. All indicated studies must be completed, to include range of motion studies of the lumbar spine, left knee, and right foot (with notation any additional functional limitations due to factors such as weakness, pain (on active and passive motion and in weight-bearing and non-weight-bearing), incoordination, fatigue, use, etc.). All findings should be described in detail. The examiner(s) should comment on any restrictions on occupational and daily activity functions due to these disabilities. The examination of the lumbar spine should note whether there are related neurological manifestations (and if so their nature, severity, frequency, and related impairment of function. The findings with respect to the right foot must be sufficiently detailed to allow for consideration on the criteria in 38 C.F.R. § 4.71a Codes 5276 -5284. The examiner(s) should include rationale with all opinions. 3. Arrange for an ear, nose and throat examination of the Veteran to assess the severity of his allergic rhinitis. The examiner should specifically note whether the Veteran has nasal polyps. 4. Arrange for a scar examination of the Veteran’s right foot to assess the severity of his scars. Findings should include: (a) Notation of the number of scars on the right foot and their locations and dimensions. (b) Whether the scars are linear or nonlinear and deep or superficial. (c) Whether the scars, each, are tender or painful, or both and whether they are unstable. (d) Whether the scars cause functional impairment (if so, describe it in detail). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel