Citation Nr: 18157062 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 12-09 371 DATE: December 11, 2018 REMANDED Entitlement to an initial evaluation in excess of 10 percent for service-connected left knee degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1964 to June 1968, and from April 1984 to March 2000. This matter is on appeal from a July 2010 rating decision. In July 2017, the Board denied the Veteran’s claim for an initial evaluation in excess of 10 percent for service-connected left knee degenerative arthritis. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in June 2018, vacated the Board’s determinations on the above issue, and has remanded the claim for the VA to obtain a compliant examination in accordance with the Joint Motion for Partial Remand. The Court found the Board erred in providing an inadequate statement of reasons or bases for finding that VA satisfied the duty to assist, and for reliance on an inadequate VA examination report. The Court found the Board failed to address evidence that the Veteran’s condition had worsened since the last VA examination, such the record may no longer adequately reveal the current state of the Veteran’s disability. The Board relied on a July 2010 and October 2011 VA examination, statements submitted by the Veteran in March 2012, and March 2017 Hearing testimony to determine the Veteran’s condition. However, the Court found: “[T]he Board did not address this evidence that the condition has worsened since the last examination, as it related to VA’s duty to assist by providing a contemporaneous examination.” The Court also found the Board provided an inadequate statement of reasons or bases for concluding the October 2011 VA examination for Knee and Lower Leg condition was adequate for rating purposes. The October 2011 VA examiner noted occurrence of flare-ups in the Veteran’s knee, but did not offer any opinion on the loss of ROM during flare-ups or explain why he could not. The Board addressed the VA examiner’s failure to address ROM, noting: “[the failure] is understandable as the examination was not performed during a flare-up.” The Court has rejected this rationale attributed to the examiner, and as such, found it inadequate. The Court found the October 2011 VA examination inadequate because the examiner did not specify whether the tests were conducted under active or passive or weight-bearing or non-weight-bearing conditions. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). The Board found this insufficiency did not make the examination report inadequate because “[the Veteran] experiences constant pain, which would include on weight bearing,” therefore, further development under Correia would not be necessary because there was no prejudice, as the Veteran was “asked to describe functional loss and impairment in various situations [,] and he has not identified that he has loss of motion to the degree required for a higher rating.” However, the Court states that in its decision in Correia, for a VA examination of the joints to be adequate, it must, “whenever possible, include the results of the range of motion testing described in the final sentence of § 4.59.” Correia, 28 Vet. App. at 169. The Court’s ruling in Correia did not depend on the issue being raised by the record. In regards to the measurement of loss of ROM during flare-ups, the fact that the mechanical Rom measurements did not show entitlement to a higher rating cannot end the Board’s discussion of the appropriate rating. See Deluca v. Brown, 8 Vet. App. 202, 206 (1995). Therefore, it cannot be the rationale for finding an otherwise incomplete examination report completed. As such, the Court has instructed that remand is necessary for the VA to obtain a contemporaneous and compliant examination. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Schedule the Veteran for a VA knee examination by to determine the current severity of his service-connected left knee degenerative arthritis. All records in Virtual VA and VBMS must be provided to and reviewed by the examiner as part of the examination. All pertinent symptomatology and findings must be reported in detail. The examiner should: (a.) Address the functional effect of the Veteran’s left knee degenerative arthritis on his occupational ability and daily activities. (b.) Specify or address whether the tests were conducted under active or passive or weight-bearing or non-weight-bearing conditions. (c.) Address any loss of ROM during flare-ups. A complete rationale should be provided for any opinion expressed. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, readjudicate the claim. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Yang, Law Clerk