Citation Nr: 1817141 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-23 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation for posttraumatic stress disorder (PTSD) in excess of 50 percent disabling prior to May 15, 2012 and in excess of 70 percent disabling thereafter. 2. Entitlement to an evaluation for left knee degenerative joint disease (DJD) in excess of 10 percent disabling. 3. Entitlement to an evaluation for left knee instability associated with DJD in excess of 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her fiancé (now spouse) ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, a different Veterans Law Judge (VLJ) remanded these issues; the case has since been assigned to the undersigned. In September 2016, the Veteran testified at a Board hearing before a VLJ no longer with the Board; a transcript of that hearing is in the record. In January 2018, the Veteran was sent a letter inquiring as to whether she wanted another hearing before a VLJ that would ultimately decide this appeal. See 38 C.F.R. § 20.707 (2017). The Veteran has not responded to such correspondence. Therefore, the Board finds that another hearing has not been requested and will proceed with adjudication. During the course of the appeal, a January 2014 rating decision increased the Veteran's evaluation for PTSD to 50 percent disabling, effective October 15, 2009; an October 2017 rating decision increased the evaluation to 70 percent disabling, effective May 15, 2012. The Veteran's appeal of entitlement to service connection for a low back disability was granted in an October 2017 rating decision. Because that decision represents a full grant of the benefit sought, the issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Finally, the Board notes that the Veteran requested the claim file reflect her last name has changed. See July 2017 correspondence. Although a marriage license and certificate is of record, there is no evidence she legally changed her name. The Veteran is encouraged to submit such evidence, if she so desires. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND PTSD During the Veteran's September 2016 Board hearing, she indicated she was soon going to make an appointment with her VA mental health provider. During her June 2017 VA PTSD examination, she stated that she was receiving VA treatment for her disability. VA treatment records have not been associated with the claim file since March 2016. Because VA treatment records are of constructive possession, remand for updated records is necessary. Knees In June 2017, the Board remanded the issues pertaining to the Veteran's left knee to comply with Correia v. McDonald, 28 Vet. App. 158 (2016). However, the June 2017 VA examination does not have range of motion measurements on active and passive motion, and with weight-bearing and non-weight-bearing. Instead, merely the presence of pain was noted. As a result, the issues must be remanded for a new VA examination to comply with Correia. See id., at 169-170 (interpreting the final sentence of 38 C.F.R. § 4.59 to include the results of range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from March 2016 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for her disabilities are associated with the record. 2. After the above development has been completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of her service-connected left knee disabilities. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements must include active and passive motion, weight-bearing, and non-weight-bearing. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.) If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board 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). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).