Citation Nr: 1806679 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 10-00 169A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for left knee degenerative joint disease (DJD) with osteochondromatosis. 2. Entitlement to an initial disability rating in excess of 10 percent for right knee DJD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1986 to March 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO granted service connection for degenerative joint disease of the bilateral knees with osteochondromatosis and assigned a 10 percent evaluation effective from April 1, 2007. In a June 2015 rating decision, the RO granted service connection for degenerative joint disease of the right knee and assigned a separate 10 percent evaluation effective June 1, 2015. Thus, the service-connected right and left knee disabilities were each assigned a 10 percent evaluation. In a May 2016 decision, in pertinent part, the Board denied an initial rating in excess of 10 percent for degenerative joint disease of the left knee, but granted a 10 percent evaluation for degenerative joint disease of the right knee effective from April 1, 2007, to June 1, 2015. The Veteran appealed the May 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2017 Order, the Court vacated the portion the decision that denied entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the left knee and entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right knee and granted a Joint Motion for Partial Remand (Joint Motion). In April 2017, the Board remanded the appeal for further development. The case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the Joint Motion, the parties noted that an April 2005 MRI showed meniscal issues with the right knee; however, the June 2015 VA examiner indicated that the Veteran did not have or ever have a meniscal (semilunar cartilage) condition. Therefore, the parties agreed that an additional examination was needed to address whether the Veteran has a meniscal condition, which included the examiner's consideration of the prior diagnostic tests as well as new diagnostic testing. In addition, the parties to the Joint Motion found that the Board had failed to adequately consider evidence from the July 2009 VA examinations during which he indicated that his knees gave out. For these reasons, the Board remanded the case in April 2017 to provide the Veteran a VA examination to ascertain the current severity and manifestations of his service-connected knee disabilities, to also include the findings required under Correia v. McDonald, 28 Vet. App. 158 (2016). Following the remand, the Veteran was afforded a VA examination in May 2017. The examiner stated that there was no subluxation noted upon examination and that there was no mention of meniscal issues in the April 2005 MRI report. No other rationale was provided, and the examiner did not address the finding of marked cartilage irregularities in the April 2005 MRI. Furthermore, there is no indication that any new diagnostic testing was performed. Therefore, the Board finds that an additional VA examination is needed to ensure compliance with the prior remand directives. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a left or right knee disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right and left knee disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include diagnostic testing to determine if there is a meniscus condition. See February 2017 Joint Motion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the left and right knee disabilities under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the right and left knees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 so in the report. The examiner should also indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; or the symptomatic removal of semilunar cartilage. He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The examiner should further state whether the Veteran has any impairment of the tibia and fibula. In addressing whether the Veteran has any meniscus or semilunar cartilage condition, the examiner should specifically address the Veteran's April 2005 MRI which noted marked cartilage irregularities, and small effusion. He or she should also identify the diagnostic testing used to determine whether such a condition currently exists. In addressing whether the Veteran has any subluxation or instability of the knees, the examiner should consider the Veteran's statements that his knees give out. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]"38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the examination report to ensure it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Thereafter, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).