Citation Nr: 1807647 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-17 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial compensable rating for left knee patellofemoral syndrome. 2. Entitlement to an initial compensable rating for right ankle non-displaced distal fibula fracture. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to March 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In February 2016, the Board remanded the claims for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Relevant to the higher rating claim for left knee patellofemoral syndrome, the Veteran was afforded VA examinations in December 2012, March 2015, and September 2015. As for the higher rating claim for right ankle non-displaced distal fibula fracture, the Veteran underwent VA examinations in December 2012 and March 2015. However, the examination reports for the left knee and right ankle disabilities do not document testing results on passive motion or in nonweight bearing, as required under 38 C.F.R. § 4.59, and no examiner has explained why such testing could not be conducted or was unnecessary. Under these circumstances, the Board finds that the examination reports do not comply with Correia v. McDonald, 28 Vet.App. 158, 169-70 (2016). Further, in his May 2014 substantive appeal (via VA Form 9), the Veteran wrote that contrary to the December 2012 VA examiner's findings that no pain was observed upon range of motion tests for left knee and right ankle, he "experienced pain with movement frequently" despite having "full motion." Given this inconsistency, it is unclear whether the December 2012 VA examination reports sufficiently reflect the then-current severity of the Veteran's left knee and right ankle disabilities to allow an informed evaluation. Therefore, in light of the above-noted deficiencies, and given that it has been more than two years since the Veteran has been afforded examinations for his service-connected left knee and right ankle disabilities, new VA examinations with retrospective opinions, if possible, are required to adequately address the higher rating claims for left knee patellofemoral syndrome and right ankle non-displaced distal fibula fracture. In addition, with the left knee disability in particular, the September 2015 examiner transcribed the Veteran's reported left knee flare-ups, which were then described as occurring "3-5 times per week after sitting for 30 minutes straight" as well as "when [the Veteran] stands [at which time] he hears a pop in his left knee then . . . experiences a sharp electrical sensations that last for 10 minutes at 10/10 pain level then pain level goes back down to 2-3/10." However, it is unclear whether the September 2015 examiner considered all procurable and assembled medical evidence, to include the above-referenced description of the left knee flare-ups elicited from the Veteran, in determining that pain, weakness, fatigability or incoordination did not significantly limit functional ability during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). On remand, the examiner should express any left knee and right ankle functional loss during flare-ups in terms of range of motion. See Sharp, 29 Vet. at 33; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examinations with an appropriate professional to determine the nature, extent, and severity of his service-connected left knee patellofemoral syndrome and right ankle non-displaced distal fibula fracture. All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion. The examination must include testing results on both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Further, the examiner must estimate any functional loss in terms of additional degrees of limited motion of the left knee and right ankle experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. 2. After completing the above actions, to include any other development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. 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 (West 2012). _________________________________________________ V. CHIAPPETTA 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).