Citation Nr: 1807962	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  15-19 325	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a rating in excess of 10 percent for a right knee disability.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Rachel E. Jensen, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Navy from February 1953 to March 1956.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  The Veteran was granted service connection for his right knee disability at 10 percent disabling, effective May 11, 2012.  The Veteran submitted a timely Notice of Disagreement with the disability evaluation and perfected his appeal.  

This appeal was previously before the Board in June 2017, at which time it was remanded for further evidentiary development.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In June 2017, the Board remanded the appeal to afford the Veteran an adequate VA examination that would comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) (precedential finding 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).  

The Veteran underwent a VA examination of his right knee in July 2017.  Unfortunately, joint testing on passive motion and nonweight-bearing was not conducted.  Additionally, a review of the available medical records indicates that joint testing for pain on passive motion and nonweight-bearing has not been conducted on the Veteran's right knee since 2013.  

In order to comply with the requirements in Correia and the remand directives, remand is necessary.  Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his right knee disability.  The Veteran's electronic claims file should be made available to and reviewed by the examiner.

The examiner is asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the joints in question.  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 provide a complete rationale for any opinions provided.

The RO is requested to ensure that the examiner provides all information required for rating purposes.

2.  When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence.  If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review.

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 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).



_________________________________________________
H.M. WALKER
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).