Citation Nr: 1807743 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 10-41 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable disability rating prior to December 27, 2016, and 30 percent from December 27, 2016, for pseudofolliculitis barbae. 2. Entitlement to a disability rating in excess of 10 percent for chondromalacia, status post anterior cruciate ligament reconstruction, with residual scars, left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from November 1989 to November 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2011, the Veteran testified at a Board hearing in Washington, D.C., before a Veterans Law Judge. A transcript of that hearing is associated with the claims file. This Veterans Law Judge is no longer at the Board and. while the Veteran was offered the opportunity to testify at a new hearing, he responded in November 2017 declining this opportunity. Therefore, VA's duty to provide a hearing has been met. 38 C.F.R. § 20.700 (2017). These issues were previously remanded by the Board for further development in February 2014 and July 2016. However, as set out below, additional development remains necessary. Stegall v. West, 11 Vet. App. 268 (1998). Following development instructed by the July 2016 Board remand, an April 2017 rating decision increased disability rating for pseudofolliculitis barbae to 30 percent, effective December 27, 2016. However, since this grant did not constitute a full grant of the benefits sought on appeal, this claim remain for appellate review. Id. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4) (2017). Regarding the Veteran's claim for an increased disability rating for pseudofolliculitis barbae, in July 2016 the Board pointed out that under Diagnostic Code 7800, 10 percent evaluation is warranted when there is one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2017). One of the characteristics of disfigurement set forth in Diagnostic Code 7800 is hyperpigmentation of the skin in an area exceeding six square inches. Although the May 2013 examiner documented hyperpigmented skin, findings regarding the total surface area of the Veteran's hyperpigmented skin were not provided and the Veteran's VA treatment records do not otherwise contain such findings. Because there is no finding within the record of whether the Veteran hyperpigmented skin exceeds six square inches, the evidence developed in this case was insufficient for the Board to rely upon to adequately evaluate the Veteran's skin disability and remand was warranted for additional development. Subsequently, the Veteran underwent another VA examination in December 2016. The examination report noted that the Veteran's dermatitis was less than five percent of the total body area and 20 percent to 40 percent of the exposed area. As such, based on this finding, the Veteran was awarded an increased rating to 30 percent under Diagnostic Code 7806, effective December 27, 2016, the date of the VA examination. However, contrary to the May 2013 VA examination, the December 2016 VA examination report did not indicate the Veteran's skin conditions caused scarring or disfigurement of the head, face, or neck and further did not indicate whether the Veteran hyperpigmented skin exceeds six square inches. It did not comment on the May 2013 VA examination findings. As such, the Board finds the December 2016 VA examination report is inadequate. Therefore, to afford the Veteran every consideration with respect to the present appeal, it is the Board's opinion that the Veteran should be scheduled for another VA examination is warranted given the contradictory finding between the May 2013 and December 2016 VA examinations, and as the findings pertaining to whether the Veteran hyperpigmented skin exceeds six square inches may affect the Veteran's rating prior to December 27, 2016. Regarding the Veteran's claim for an increased disability rating for chondromalacia, status post anterior cruciate ligament reconstruction, with residual scars, of the left knee, the Veteran was afforded VA examination in December 2016. The Board notes, however, the Court in Correia v. McDonald, 28 Vet. App. 158 (2017), held that the final sentence of 38 C.F.R. § 4.59 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. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id. While the December 2016 VA examination tested for range of motion for the left knee, a review of the claims file reveals that this VA examination did not conduct joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. In short, the VA examination is inadequate. Thus, at present, none of the more current medical evidence of record fully satisfies the requirements of Correia and 38 C.F.R. § 4.59. As such, a new VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected left knee disability. In order to comply with Correia, it is requested that the VA examiner test the range of motion for both knees in active motion, passive motion, weight-bearing, and nonweight-bearing situations. On remand, ongoing VA and private treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA bilateral knee examination with an appropriate specialist to determine the current severity of his pseudofolliculitis barbae. The claims file must be provided to the examiner for review in conjunction with the examination and such must be acknowledged. All appropriate tests and studies must be accomplished. The examiner shoulder review the claims file prior to examining the Veteran and should opine as to the current level of severity of the Veteran's pseudofolliculitis barbae. The examiner should note the affected areas and any present disfigurement, and should detail any residual scarring associated with the condition. The examiner should comment on whether the Veteran has hyperpigmentation exceeding six square inches. Furthermore, the examiner is requested to comment on all prior VA examinations and the Veteran's lay statements regarding his symptomatology. If the VA 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 VA examiner should provide a complete rationale for any opinions provided. 2. Schedule the Veteran for a VA bilateral knee examination with an appropriate specialist to determine the current severity of his left knee disorder. The claims file must be provided to the examiner for review in conjunction with the examination and such must be acknowledged. All appropriate tests and studies must be accomplished. The examiner must ascertain the current severity and manifestations of his service-connected left knee disability. The examiner must provide information concerning the nature and extent of the Veteran's left knee disability. Also, range of motion findings reported in degrees must be provided in the examination report. The degree at which pain begins must be documented. The examination report must also include findings consistent with the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). Any limitations due to pain, weakness, fatigability, or incoordination including after repetitive movement and on flare-ups must be noted in the examination report, if applicable. Additional limitation of function in such circumstances should be noted, expressed in degrees of lost motion. Recent caselaw has held that the inability to personally observe a falre-up is an insufficient basis for declining to provide an estimate of its likely functional effects. Also, in order to comply with the Court's recent precedential decision in Correia, the VA examination must include range of motion testing for both knees in the following areas: active motion; passive motion; weight-bearing; and nonweight-bearing. If the VA 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 VA examiner should provide a complete rationale for any opinions provided. 3. Upon completion the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, these claims should be readjudicated. If any claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. 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). _________________________________________________ ERIC S. LEBOFF 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) (7).