Citation Nr: 18155768 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-08 824 DATE: December 6, 2018 REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the left knee is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1972 to August 1982. Ten service connection claims were developed separately and remanded by the Board in September 2016. These issues appear to be still underdoing development at the Agency of Original Jurisdiction (AOJ) and have not yet been returned to the Board; therefore, they are not addressed herein. Regarding the issues on appeal, Remand is necessary to ensure that due process is followed. In pertinent part, under 38 C.F.R. § 19.37, if a Statement of the Case (SOC) is prepared prior to receipt of additional evidence, a Supplemental Statement of the Case (SSOC) must be furnished, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue on appeal. Here, additional evidence (including VA treatment records) was added to the claims file in the process of developing unrelated claims. These records document the nature and severity of the Veteran’s service-connected back and knee disabilities. However, because this evidence was received after the February 2016 SOCs, it must be submitted to the AOJ for consideration and an issuance of an SSOC. (The Board notes that, although recent statutory provisions allow for an automatic waiver of initial AOJ review of post-substantive appeal evidence, that type of evidence must be submitted by the Veteran. See 38 U.S.C. § 7105(e). Here, the post-substantive appeal evidence was not submitted by the Veteran. Thus, the automatic waiver does not apply.) In addition, the Veteran was most recently afforded a VA examination to determine the degree of severity of his service-connected right knee disability in May 2013, and his service-connected back and left knee disabilities in August 2014. The United States Court of Appeals for Veterans Claims (Court) has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” This was not done on the May 2013 and August 2014 VA examinations. As such, pursuant to Correia, the new VA examinations must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Prior to the examination, the AOJ should obtain updated treatment records. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding, pertinent treatment records, to include both VA and private records. 2. After all available records are obtained for the record, afford the Veteran a VA examination to determine the current nature and severity of the service-connected lumbosacral spine and right and left knee disabilities. All indicated evaluations, studies, and tests deemed to be necessary should be accomplished. All pertinent evidence of record should be made available to and reviewed by the examiner. All information required for rating purposes should be provided to the examiner. All pertinent evidence of record should be made available to and reviewed by the examiner. All information required for rating purposes should be provided to the examiner. a. The spine examination must be conducted in accordance with the current disability benefits questionnaire or examination worksheet applicable to the disability. Ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the thoracolumbar spine must be conducted. 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. The examiner must also provide an opinion concerning the functional impairment of the Veteran’s service-connected lumbosacral spine disability. b. The bilateral knee examination must be conducted in accordance with the current disability benefits questionnaire or examination worksheet applicable to the knee disabilities. Ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for each knee must be conducted. 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. The examiner must also provide an opinion concerning the functional impairment of the Veteran’s service-connected right knee disability and left knee disability. 3. Readjudicate the issues on appeal with consideration given to all of the relevant evidence added to the claims file after the February 2016 SOC. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.R.Fletcher, Counsel