Citation Nr: 1807953 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 09-37 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES Entitlement to an evaluation in excess of 10 percent for right knee strain. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at an October 2012 Board hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. A transcript of the hearing is included in the claims file. In February 2013, the Board remanded the appeal for additional evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Since the issue of entitlement to an evaluation in excess of 10 percent for right knee strain was last before the Board, the United States Court of Appeals for Veterans Claims (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. Thus, a recent VA examination with retrospective and current medical opinions is needed before the increased rating claim for right knee strain can be addressed on the merits. Id. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to ascertain the severity of the service-connected right knee strain, to include retrospectively. The claims file must be made available to the examiner in conjunction with the examination. 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 right knee since 2008. 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 right knee strain 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 right knee strain since 2008. The examiner should describe any symptomatology associated with flare-ups and describe the frequency, duration, and severity of the disability during flare-ups. Further, the examiner should express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the right 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 right knee since 2008. 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. In particular, with respect to flare-ups and repetitive use, the examiner should identify any functional loss, to include the amount of range of motion loss, if any, that is present during flare-ups and repetitive use. If the examination is not taking place during a flare-up and/or repetitive use, the examiner should elicit information from the record and the Veteran regarding the severity, frequency, duration, and functional loss manifestations during flare-ups and repetitive use, and estimate range of motion loss, in terms of degrees. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. 2. After completing the development above, readjudicate the claim on appeal in light of all additional evidence received. If any of the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).