Citation Nr: 1806819 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 08-33 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the left knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to November 1974. The claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript has been associated with the record. In November 2010 and September 2013, the Board remanded the appeal for further evidentiary development. In April 2016, the Board denied an evaluation in excess of 10 percent for degenerative joint disease of the left knee and remanded the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU). The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board's denial of an evaluation in excess of 10 percent for degenerative joint disease of the left knee. In June 2017, the Board remanded the issue of entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the left knee for development consistent with the Court's September 2016 Order. The issue of entitlement to a TDIU has not been recertified to the Board. Therefore, the Board does not have jurisdiction over this issue. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Court provided a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2017) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). This holding establishes additional requirements that must be met prior to finding that a VA examination is adequate. Id. The VA examination dated in December 2013 and the examinations dated prior to this date are not adequate. In June 2017, the Board remanded the appeal to provide the Veteran with a VA examination that complies with the Court's holding in the Correia case. The Veteran failed to report for the scheduled VA examination. The AOJ scheduled the VA examination at the Nashville, Tennessee, VA Medical Center, which is approximately 90 miles from the Veteran's home. In a January 2018 brief, the Veteran's representative asserted that VA failed its duty to assist and that the AOJ should have scheduled a local contract examination under the VA Choice program. The Board agrees. Accordingly, an examination with retrospective and current medical opinions is needed before the claim can be addressed on the merits. Id. Lastly, the Veteran is reminded that a failure to report for his scheduled VA examination could result in a denial of his claim. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a local VA or contract examination by a medical doctor with the appropriate expertise to ascertain the severity of the service-connected degenerative joint disease of the left knee, to include retrospectively. The examiner must review the claims file and should note that review in the report. The examination report must include ranges of motion of the bilateral knees in active motion, passive motion, weight-bearing, and nonweight-bearing, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The VA examiner must also provide a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the left knee since 2006. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that Veteran's service-connected degenerative joint disease of the left knee is worse than shown on some prior examinations. The examiner should provide a retrospective medical opinion with respect to the severity of the Veteran's service-connected degenerative joint disease of the left knee since 2006. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the left knee. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The VA examiner must also provide a retrospective medical opinion addressing the functional impairment of the left knee since 2006. 2. After the above action has been completed, readjudicate the Veteran's claim. If the claim remains denied, issue the Veteran and his representative a supplemental statement of the case. Afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).