Citation Nr: 1808674 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-33 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease with chronic sprain of the lumbosacral spine (low back disability). 2. Entitlement to an initial disability rating in excess of 10 percent for mild degenerative osteoarthritis of the right knee (right knee disability). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to November 1974 and from September 1975 to May 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction of the Veteran's claims is currently with the VA RO in Indianapolis, Indiana. In April 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2015 and July 2016, the Board remanded the Veteran's claim for entitlement to a disability rating in excess of 10 percent for a right knee disability. Recently, in May 2017, the Board again remanded this claim in order to afford the Veteran a more recent VA examination. In a July 2016 decision, the Board denied the Veteran's claim for entitlement to a disability rating in excess of 10 percent for a low back disability. The Veteran appealed that denial to the United States of Appeals for Veterans Claims (Court). In May 2017, the Court entered an Order granting a Joint Motion for Partial Remand (JMPR) to vacate the Board's July 2016 decision with respect to the claim for an increased rating for a low back disability for action consistent with the terms of the JMPR. In October 2017, the Board remanded this claim in order to afford the Veteran a new VA examination consistent with the terms of the JMPR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Low Back Disability In October 2017, the Board remanded the Veteran's claim for an increased rating for his low back disability for additional development consistent with the May 2017 JMPR. The Board directed that the Veteran be afforded a new VA spine examination and instructed the AOJ to readjudicate the Veteran's claim in a Supplemental Statement of the Case. The Veteran attended a January 2018 VA spine examination; however, his claim was not readjudicated by the AOJ and the Board is precluded from reviewing this evidence in the first instance. Accordingly, an additional remand is required. Right Knee Disability The Veteran's claim for an increased rating for a right knee disability was recently remanded by the Board in May 2017. The Board directed the AOJ to afford the Veteran a VA examination to assess the current severity of his right knee disability and to ensure that the examination complied with the Court's recent decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of range of motion testing described in the final sentence of 38 C.F.R. § 4.59." Id. at 169-70. The referenced portion of 38 C.F.R. § 4.59 (2017) states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint." The Veteran attended a July 2017 VA examination and the examiner performed range of motion testing on active and passive motion; the Board presumes this range of motion testing was performed with nonweight-bearing. Although the Veteran complained of pain with weight-bearing, there is no evidence that range of motion testing was performed with weight-bearing and there is no indication from the examiner that this testing was unable to be performed. See Correia, 20 Vet. App. at 170 (holding that this testing must be performed "wherever possible") (emphasis added). Although the Board regrets the further delay, to ensure the Veteran's claim is properly and fairly adjudicated in accordance with the Court's holding in Correia, the Board finds an additional remand is required. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record. 2. Following completion of step 1, readjudicate the Veteran's claim for an increased rating for a low back disability. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must 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. 3. Afford the Veteran a VA examination to determine the current nature and severity of his right knee disability. The examination results should be recorded using the most recent version of the Knee and Lower Leg Conditions Disability Benefits Questionnaire. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner is informed that passive and active range of motion testing must be performed, in weight-bearing AND nonweight-bearing settings. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, examiner must perform the following testing: (a) Conduct passive range of motion testing in a weight-bearing setting for both knees; (b) Conduct passive range of motion testing in a nonweight-bearing setting for both knees; (c) Conduct active range of motion testing in a weight-bearing setting for both knees; (d) Conduct active range of motion testing in a nonweight-bearing setting for both knees; If the examiner determines it is not possible to conduct any of the above-referenced range of motion testing for any reason, he or she MUST explain why this is so. The examiner must provide a rationale for all opinions requested, to include all those listed on the most recent Disability Benefits Questionnaire. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. Following completion of steps 1 and 3, to avoid an additional remand, the AOJ must review the VA knee examination report and opinions to ensure they are adequate AND that they comply with the Board's specific remand directives. 5. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). 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 record. 6. Following completion of steps 1, 3, and 4, the Veteran's claim for an increased rating for a right knee disability must be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must 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. The Veteran 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. §§ 5109B, 7112 (2012). (CONTINUED ON NEXT PAGE) _________________________________________________ MICHAEL MARTIN 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).