Citation Nr: 18161255 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 08-13 840 DATE: December 31, 2018 REMANDED Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is remanded. Entitlement to an evaluation greater than 10 percent for degenerative joint disease of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1973 to April 1975, from December 1981 to November 1988, and from April 1989 to June 1999. In May 2014, a travel board hearing was held before the undersigned. A transcript of that hearing is of record. In September 2017, the Board increased the Veteran’s back disorder rating from 20 percent to 40 percent and denied entitlement to a rating in excess of 10 percent for the Veteran’s right knee disorder. In July 2018, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand for the Veteran’s claims. 1. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is remanded. Regarding the Veteran’s back disorder, in July 2018, the Court affirmed a JMR on the basis that the Veteran’s November 2009 and January 2015 VA examinations do not describe where pain begins in the Veteran’s range of motion. A new examination is required. The examiner should also consider statements regarding back pain as contained in July 2018 affidavit accompanying the Veteran’s December 2018 TDIU application. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee is remanded. Regarding the Veteran’s right knee disorder, in July 2018, the Court affirmed a JMR on the basis that the January 2015 VA examiner failed to “estimate whether there was functional loss due to pain or functional loss due to the flare-ups that were observed in the December 2005, November 2006, and May 2011 examinations” or provide “an explanation as to why that evidence could not be obtained.” A new examination is required. The examiner should also consider statements regarding knee pain as contained in July 2018 affidavit accompanying the Veteran’s December 2018 TDIU application. Additionally, on remand the RO should obtain all relevant VA treatment records dated from November 2018 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from November 2018 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and severity of the Veteran’s service-connected right knee disorder and back disorder. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. The examiner should answer the following questions: Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of the opposite undamaged joint. 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 the basis for this decision. The examiner should determine whether the Veteran’s back disorder or right knee disorder is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. Regarding the Veteran’s right knee disorder, the examiner should estimate whether there was functional loss due to pain or functional loss due to the flare-ups that were observed in the December 2005, November 2006, and May 2011 examinations. If this evidence cannot be obtained, the examiner should explain why. Regarding the Veteran’s back disorder, the examiner should indicate where pain begins in the Veteran’s range of motion. For both disorders, the examiner should consider statements regarding knee and back pain as contained in July 2018 affidavit accompanying the Veteran’s December 2018 TDIU application. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel