Citation Nr: 1808024 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-18 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a left ankle disability. 2. Entitlement to a rating in excess of 10 percent for a right ankle disability. 3. Entitlement to a rating in excess of 10 percent for a left knee disability. 4. Entitlement to a rating in excess of 10 percent for a right ankle disability. 5. Entitlement to compensable initial rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from November 1978 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) from the July 2011 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared at a May 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran's last VA audio examination was in March 2011, his last bilateral knee examination was in December 2011, and his last bilateral ankle examination was in February 2014. Since then, the Veteran has testified at his Board hearing before the undersigned that these disabilities have worsened. Therefore, the Board finds that the RO should schedule the Veteran for new VA examinations for all of his disabilities to determine the current severity of them. Additionally, the Veteran's bilateral knee examination did not specify whether the range of motion measurements were taken on active motion, passive motion, weight bearing, and/or non-weight bearing. In addition, the examiner did not indicate that he was unable to perform range of motion testing on active, passive, weight bearing, or non-weight bearing or that such testing was not necessary. Therefore, the examination report did not make clear the extent to which pain affects the Veteran's passive, active, weight bearing, and non-weight bearing motion. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 (2016) creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence of that section provides, in relevant part, that "[t]he joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing . . . ." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. The December 2011 VA examination report does not comply with Correia because it does not include range of motion testing on active, passive, weight bearing, and non-weight bearing or a statement to the effect that such testing was not possible or unnecessary in this case, such that the effects of pain on the Veteran's functioning may adequately be assessed under the provisions of 38 C.F.R. § 4.59. Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran's claims file. 2. Once the above development has been completed, schedule the Veteran for a VA audiological examination with an appropriate VA audiologist to ascertain the current severity and manifestations of his service connected right ear hearing loss. The record and a copy of this Remand must be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a pure tone audiometry test. The examiner should also obtain a detailed description from the Veteran and discuss the functional effects of the Veteran's right ear hearing loss disability on his occupational functioning and daily activities, with as much specificity as possible. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. Then, schedule the Veteran for a VA ankle examination with an appropriate VA examiner to ascertain the current severity and manifestations of his service connected bilateral ankle disabilities. The record and a copy of this Remand must be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The RO or AMC should ensure that the examiner provides all information required for rating purposes. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, and with weight-bearing and without weight-bearing. The examiner should also be directed to perform the same range of motion tests for the Veteran's right ankle and left shoulder. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 4. Next, schedule the Veteran for a VA knee examination to determine the current nature and severity of his service connected bilateral knee disability. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the service connected disability. The record and a copy of this Remand must be made available to and reviewed by the examiner. The examiner must address the following: a) Pursuant to Correia, the examination should record the results of range of motion testing for pain on both active and passive motion and in weight bearing and non-weight bearing for BOTH knees. 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 recording the ranges of motion for the Veteran's knees, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. The examiner should also indicate whether the Veteran experiences additional functional loss during flare-ups of the service connected left knee disability. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. 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. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner must provide a complete rationale for any opinion expressed. 5. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the evidence of record. 6. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary. 7. Then, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ MICHAEL MARTIN 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).