Citation Nr: 1806539 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-12 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for service-connected residuals of left knee meniscectomy with limitation of flexion. 2. Entitlement to a rating in excess of 20 percent for a service connected left shoulder disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T. Fales, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1985 to November 1987. He served honorably in the United States Army. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran has requested that his case be advanced on the docket due to financial hardship (home foreclosure in process). See VA 21-4138, Statement in Support of Claim, April 2017. The motion to advance the case on the docket is granted. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires certain range of motion testing be conducted for claims involving joints, such as the knee and shoulder. The final sentence of § 4.59 provides 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." The Court held that an adequate VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. VA examiners should also convey any additional or increased symptoms and functional loss experienced during flare-ups, as well as information pertaining to frequency, duration, characteristics, and severity. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Here, the Veteran underwent a VA examination for his left knee and left shoulder in July 2012 and there is an addendum opinion associated with that examination dated October 2012. However, a review of the examination reports shows that they do not comply with the above requirements and therefore a remand for another examination is warranted. The Board notes that in the Veteran's April 2014 substantive appeal, he contended that VA examinations had been inadequate; accordingly, a new examination is also responsive to duty to assist issues raised by the Veteran. See generally Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000); Buckley v. West, 12 Vet. App. 76, 83 (1998). Pursuant to the recent case Lyles v. Shulkin, No. 16-0994, U.S. App. Vet. Claims (Nov. 29, 2017), it is not pyramiding for VA to assign separate ratings under DCs 5258 and 5260 in appropriate circumstances. Therefore, after all of the other remand instructions have been complied with, the RO should readjudicate the Veteran's left knee claim to determine whether separate ratings under those DCs, and any other DCs, are warranted. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all outstanding VA and non-VA medical records for the Veteran's service connected left knee and left shoulder disabilities. 2. After the record is determined to be complete, schedule the Veteran for a VA examination to determine the current extent of his service connected left knee and left shoulder disabilities. In particular, the examiner should: a. Conduct range of motion testing, specifically noting the ranges of motion in degrees on active and passive motion, weight-bearing and nonweight-bearing, including with comparison to the opposite undamaged joint. If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done. b. Consider the Veteran's reports of flare-ups and portray any related functional impairment in terms of additional range of motion loss. The frequency, duration, characteristics, and severity should also be noted. If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done. 3. Following completion of the above, readjudicate the knee and shoulder issues on appeal. Regarding the knee, readjudication should include consideration of separate ratings based on limitation of motion and meniscectomy residuals. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate, for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).