Citation Nr: 1808530 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-07 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected headaches. 2. Entitlement to a rating in excess of 30 percent for service-connected right knee disability, status post right total knee arthroplasty, for the period on and after February 1, 2014. 3. Entitlement to an initial compensable rating prior to November 7, 2012, and a rating in excess of 10 percent disabling thereafter for service-connected left knee degenerative joint disease (DJD). REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1983 to April 1987.. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2013, and January 2016 by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Board notes that the issues of entitlement to higher ratings for service-connected headaches and right knee disability were previously before the Board in September 2015 and November 2016. Furthermore service connection for the Veteran's left knee disability was before the Board in September 2015 as well. The Board remanded the issues in September 2015 and in November 2016 the Board denied the Veteran's claim for a higher rating for headaches and again remanded the Veteran's right knee disability. In August 2017, the Court through a joint motion for partial remand (JMPR) vacated the Board's decision to deny the Veteran's claim for a higher initial rating for headaches and remanded the issue back to the Board for further adjudication. In addition, the Board finds that while the Board's remand instructions were complied with, as will be discussed in the remand section, additional clarification and development is needed. In a January 2017 rating decision the RO granted service connection for spondylolisthesis, and surgical scar, status post right knee replacement both rated as noncompensable effective December 17, 2012. The Veteran filed a notice of disagreement in December 2017. However, as it appears that the RO is still working on the claims, no further action is required at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). Relevant to the Veteran's claims for higher initial and increased ratings for his headaches and right and left knee conditions, the Court has held that, where the record does not adequately reveal the current state of claimant's disabilities, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The record reflects that the Veteran was most recently afforded a VA Knee and Lower Leg Conditions disability benefits questionnaire (DBQ) in December 2016, which primarily focused on the Veteran's right knee and a Headaches DBQ in December 2015. The Board finds that contemporaneous examinations are necessary as so much time has passed and the Veteran has alleged significantly worsening symptoms. Specifically, the Veteran alleged that his conditions are far worse than is represented by his current ratings. Therefore, the Board finds that a remand is required in order to determine the Veteran's current level of impairment with regard to his service-connected headaches and left and right knee conditions. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Furthermore, in the Board's prior remand in November 2016, the Board directed the RO to obtained an examination which was compliant with the Court's ruling in Correia v. McDonald, 28 Vet. App. 158 (2016). While the December 2016 VA examiner did answer questions as to pain with non-weight bearing, passive range of motion, and whether there was evidence of pain on passive motion, the examiner did not provide any explanation or rationale for his answers and he did not provide any specific values for passive range of motion testing. Therefore, on remand the new examinations should include Correia compliant testing along with thorough explanations of the examiner's findings. The new examinations should include specific findings regarding the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. Regarding the Court's further ruling that the Veteran's "normal" joint should be tested for comparison to the service-connected joint, the Board notes that the Veteran is service connected for both knees, and, as such, there is not a "normal" paired joint that can be measured as a point of comparison. The Court has also held that VA examiners must offer flare opinions based on estimates derived from information procured from relevant sources, including a Veteran's lay statements. In this case, the Veteran has alleged that he experiences flares of his knee condition when climbing stairs, lifting, pushing, pulling and kneeling . However, the examination is inadequate because, while acknowledging that the Veteran had increased functional impairment during flares, the examiner failed to ascertain adequate information, such as the frequency, duration, characteristics or severity of the flares by alternative means. See Sharp v. Shulkin, 29 Vet.. App. 26 (2017). Finally, due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. The Veteran should be afforded appropriate VA examinations to determine the current nature and severity of his service-connected right and left knee conditions. The examiner must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. If this testing cannot be done, the examiner should clearly explain why this is so. In doing so, the examiner should provide a retrospective medical opinion on the Veteran's range of motion of both knees throughout the time period of the claim. That is, with consideration of the evidence of record and his history, as well as lay statements, comment on the historical severity of the Veteran's range of motion testing on both active and passive motion and in weight-bearing and nonweight-bearing. The examiner must also estimate the frequency, duration, characteristics, and severity of flares during the period on appeal. If these opinions cannot be provided, the examiner should clearly explain why this is so, including discussing whether the prior VA examinations are accurate representations of the Veteran's disability level. All opinions expressed must be accompanied by supporting rationale. 3. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected headache condition. All opinions expressed must be accompanied by supporting rationale. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (West 2014). _________________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).