Citation Nr: 1807749 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-15 900A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 50 percent for chronic left knee retropatellar pain syndrome. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran had active duty from August 1998 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, Regional Office. In April 2014, the RO increased the evaluation for the Veteran's left knee disorder from 10 to 50 percent effective September 13, 2011. In November 2016, the Board remanded the case for further development. With regard to the Veteran's representation, the record reflects that, in May 2014, he executed a VA Form 21-22 in favor of National Veterans Organization of America. However, in November 2016, he executed a new VA Form 21-22 in favor of the Georgia Department of Veterans Services, thereby revoking National Veterans Organization of America. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that a new VA examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint (or for an explanation as to why such testing cannot be conducted). See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Indeed, the most recent VA examination, which was conducted in November 2016, notes that the Veteran exhibited pain on weight bearing, which reportedly increases with prolonged standing, bending, and walking, but does not include testing for pain in weight-bearing. Additionally, the VA examination did not address the Veteran's functional limitations during flare-ups. The Board acknowledges that the examiner checked the box indicating that the Veteran does not experience flare-ups, but finds that the Veteran's increased symptomatology during prolonged weight bearing amounts to flare-ups. Accordingly, upon remand, if the examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups based on the Veteran's descriptions of his additional loss of function during flare-ups, information gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding records of the Veteran's left knee treatment. 2. Notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of the severity of his service-connected knee disability and its impact on his ability to work. 3. Arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected left knee disability. The joint involved must be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The examiner is also to describe e all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner is to ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner is to estimate the functional loss (in terms of lost range of motion) based on all the evidence of record. If for any reason 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 is to also address the Veteran's reports locking and swelling. 4. Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. ____________________________________________ STEVEN D. REISS 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).