Citation Nr: 1806924 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-17 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to increased disability evaluation for degenerative joint disease, right hip, status post total right hip replacement with asymptomatic scar, currently evaluated as 30 percent disabling. 2. Entitlement to increased disability evaluation for degenerative joint disease, right knee, status post total knee replacement with asymptomatic scar, currently evaluated as 30 percent disabling from January 1, 2010, to April 2, 2014, and in excess of 60 percent thereafter. 3. Entitlement to increased disability evaluation for torn medial meniscus, left knee, status post total knee replacement with asymptomatic scar, currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney INTRODUCTION The Veteran served on active duty from May 1966 to May 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California (RO). In a April 2014 rating decision, the RO increased the evaluation of disability of the Veteran's degenerative joint disease, right knee, status post total knee replacement with asymptomatic scar, to 60 percent effective April 2, 2014. Because the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks increased evaluations of disability for his service-connected residuals of total right hip replacement, total right knee replacement, and total left knee replacement. Inasmuch as the Board regrets the additional delay of this appeal, a remand is required so that the claims may be properly adjudicated. First, the Board finds that the April 2012 and April 2014 VA examinations were inadequate for evaluating musculoskeletal disability. Since these examinations, the United States Court of Appeals for Veterans Claims (Court) has held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, on 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). Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA musculoskeletal examination is adequate. As the April 2012 and April 2014 VA examinations do not fully comply with the requirements of Correia and 38 C.F.R. § 4.59, new examinations are required with regard to the Veteran's claims. Second, in its September 2015 statement of representative, the Veteran's representative asserted that the Veteran's service-connected disabilities have further worsened since his April 2014 VA examinations. Hence, new examinations are required to determine the current severity of the Veteran's service-connected disabilities. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a new VA examination to assess the current severity of his service-connected right hip disability. The claims folder (including Virtual VA and VBMS documents) and a copy of this Remand must be provided to the examiner in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, and the examiner must indicate on the examination report that such review was undertaken. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. All pertinent symptomatology and findings must be reported in detail in accordance with Diagnostic Codes 5054 and 5250 through 5255. All ranges of motion involving the Veteran's service-connected right hip disability should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's right hip disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. In order to comply with the Court's recent precedential decision in Correia v. McDonald, the examiner must test and record the 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 why that is so. The examiner should also provide an opinion concerning the impact of the Veteran's right hip disability on the Veteran's ability to work to include whether the Veteran is unemployable because of his service-connected disabilities. 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 for review. 2. Schedule the Veteran for a new VA examination to assess the current severity of his service-connected bilateral knee disabilities. The claims folder (including Virtual VA and VBMS documents) and a copy of this Remand must be provided to the examiner in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, and the examiner must indicate on the examination report that such review was undertaken. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. All pertinent symptomatology and findings must be reported in detail in accordance with Diagnostic Codes 5055 and 5256 through 5263. All ranges of motion involving the Veteran's service-connected bilateral knee disabilities should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's bilateral knee disabilities could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. In order to comply with the Court's recent precedential decision in Correia v. McDonald, the examiner must test and record the 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 why that is so. The examiner should also provide an opinion concerning the impact of the Veteran's bilateral knee disabilities on the Veteran's ability to work to include whether the Veteran is unemployable because of his service-connected disabilities. 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 for review. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claims on appeal. If the benefits sought remain denied, provide a supplemental statement of the case to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG 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).