Citation Nr: 1824136 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 07-19 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee. 2. Entitlement to a rating in excess of 10 percent for DJD of the left knee. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from July 1994 to August 1997. This appeal is before the Board of Veterans' Appeals (Board) from a January 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2009, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript is included in the claims file. The Board remanded the matters on appeal in March 2010 and March 2012, and denied the claims in February 2013. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2013, the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand. In an August 2013 Order, the Court granted the motion and remanded the case to the Board. In January 2014, the Board again remanded the matters on appeal. In February 2017, the Board denied ratings in excess of 10 percent for DJD of each knee, but remanded the issue of separate ratings for bilateral meniscal tears with instruction for the AOJ to assign separate ratings for the Veteran's bilateral meniscal tears with "locking," pain, and effusion in the joint, and to determine the appropriate effective date for such ratings. The Veteran again appealed the decision to the Court insofar as it denied higher ratings for knee DJD. In December 2017, the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Partial Remand (Joint Motion). In a December 2017 Order, the Court granted the motion and remanded the case to the Board. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the December 2017 Joint Motion, the parties to the Motion noted that in denying higher ratings for right and left knee DJD, the Board had relied on "VA medical opinions dated in November 2005, July 2007, April 2010, June 2012, and February 2014." They further noted that, in its March 2012 remand, the Board "requested that a future VA examiner opine 'as to whether pain could significantly limit functional ability during flare-ups or when the right and left knees are used repeatedly over a period of time,'" and also "directed the examiner to portray any limitation in functional ability in terms of the degree of additional loss of motion, or ankylosis due to pain on use or flare-ups, if feasible." However, the subsequent June 2012 VA examination report noted flare-ups, but "did not address their effect," and the subsequent "February 2014 VA examiner noted that [the Veteran] reported intermittent swelling, pain with prolonged standing and walking, chronic aching pain, and flare-ups with prolonged walking and standing, but did not address functional loss." The parties thus determined that "the Board erred in relying on inadequate VA medical opinions." In doing so they cited several cases: DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (a VA examination that fails to take into account the relevant factors of §§ 4.40 and 4.45, including those experienced during flare-ups, is inadequate for evaluation purposes); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (when an examiner fails to either (1) address functional loss during flare-ups, or (2) demarcate whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain, the examination lacks the detail necessary to permit the assignment of a disability rating); and Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) (the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweightbearing and, if possible, with the range of the opposite undamaged joint unless the medical examiner determines that it cannot or should not be conducted). The parties therefore instructed the Board to "ensure that [the Veteran] is provided with a VA medical examination that comports with the remand instructions set forth in its March 2012 remand order, as well as with Mitchell and DeLuca, addressing functional loss during flare-ups and, if feasible, expressing any additional limitation of flexion or extension in terms of degrees, and providing the testing required under § 4.59 and Correia." They further instructed that "[t]he VA medical examination report should further include consideration of a January 2008 private treatment record indicating that the '[l]ateral joint line has positive McMurray.'" Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current level of severity of his right and left knee DJD. The claims file should be made available to the examiner. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria. The examiner should specifically do the following: a. Determine whether the Veteran's right and left knees exhibit weakened movement, excess fatigability, or incoordination. If feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or ankylosis due to any weakened movement, excess fatigability, or incoordination. b. Provide an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right and left knees are used repeatedly over a period of time. This determination should also, if feasible, be expressed in terms of the degree of additional range of motion loss or ankylosis due to pain on use or during flare-ups; if not feasible, the examiner should provide an explanation of why not. c. Test the joints involved for pain on both active and passive motion, in weight-bearing and nonweightbearing, unless the medical examiner determines that such testing cannot or should not be conducted. d. Consider the January 25, 2008, private treatment record from Dr. W.S.R., M.D., indicating that the "[l]ateral joint line has positive McMurray." 2. After completing the above and any other necessary development, readjudicate the appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran. 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 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). _________________________________________________ T. D. JONES Acting 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).