Citation Nr: 1826558 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 14-39 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating for right knee synovial osteochondromatosis. 2. Entitlement to an initial compensable rating for left knee synovial osteochondromatosis. ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1987 to June 2007. His decorations include the Combat Action Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND After a review of all of the evidence, the Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the underlying claim. During the appeal period, the Veteran was provided a VA examination in May 2011 to determine the nature, extent, and severity of his right and left knee disabilities. Following the May 2011 VA examination, the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia interprets 38 C.F.R. § 4.59 to establish certain requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id. A review of the claims files reveals that the May 2011 VA examination report includes only active range of motion findings and do not include range of motion findings for passive range of motion. As the May 2011 examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. In this regard, VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). An examination report that does not address additional range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups is inadequate for rating purposes. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). During the May 2011 VA examination, the Veteran reported having flare-ups with regard to his knee disability. Hence, on examination, the examiner is requested to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, they affect functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received for his bilateral knee disabilities, and take appropriate measures to obtain those records. Any additional, VA treatment records should either be made accessible electronically or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his bilateral knee disabilities that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of the nature and severity of his bilateral knee disabilities and their impact on his ability to work. He should be provided an appropriate amount of time to submit this lay evidence. 3. Ensure the Veteran is scheduled for a VA examination in connection with his claim for increased rating for right and left knee synovial osteochondromatosis, by an appropriate medical professional. The contents of the entire claims file, to include a complete copy of this Remand, must be made available to the examiner, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting clinician prior to the completion of his or her report) and all clinical findings needed to evaluate the limitation of flexion of the left knee and osteoarthritis of the right and left knee should be reported in detail. 4. The examiner should be asked to provide a complete assessment of the severity of the Veteran's service connected right and left knee synovial osteochondromatosis. The examination should be conducted in accordance with the current Disability Benefits Questionnaire (DBQ), to include compliance with 38 C.F.R. § 4.59 as interpreted in Correia. The examiner should report the ranges of motion for the right and left knee. Specifically, the examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. The examiner should also state whether the Veteran's right and left synovial osteochondromatosis is manifested by weakened movement, excess fatigability, incoordination, or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. If pain is present during the range of motion, the examiner should identify at what point during the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 5. The examination must also comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, an opinion must be provided as to whether the left knee and left leg disabilities could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. With respect to any subjective complaints of pain, the examiner is requested to specifically comment on whether pain is visibly manifested on movement of the right and left knee, and to what degree, and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain. A complete rationale for all opinions should be provided. If the examiner determines the Veteran is not currently suffering from a flare of the right or left knee disabilities, the examiner must also ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding flares by alternative means. The examiner must offer an estimate as to additional functional loss during flares regardless of whether the veteran is undergoing a flare-up at the time. DeLuca v. Brown, 8 Vet. App. 202 (1995). As noted in the instructions of the appropriate Disability Benefits Questionnaire (DBQ), the examiner is requested to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, they affect functional impairment. A full and complete rationale for all opinions expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Thereafter, readjudicate the claims that are the subject of this Remand. If any benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative, if any, the requisite period of time to respond. The case should thereafter be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ DAVID GRATZ Acting 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).