Citation Nr: 21042661 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-26 290 DATE: July 13, 2021 ISSUES 1. Entitlement to a compensable disability rating for residuals, stress fracture, left tibia prior to November 27, 2018. 2. Entitlement to a disability rating in excess of 10 percent for residuals, stress fracture, left tibia, associated with arthritis left knee, from November 27, 2018. 3. Entitlement to a compensable disability rating for residuals, stress fracture, right tibia prior to November 27, 2018. 4. Entitlement to a disability rating in excess of 10 percent for residuals, stress fracture, right tibia, associated with arthritis right knee, from November 27, 2018. 5. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU). REMANDED Entitlement to a compensable disability rating for residuals, stress fracture, left tibia prior to November 27, 2018, is remanded. Entitlement to a disability rating in excess of 10 percent for residuals, stress fracture, left tibia, associated with arthritis left knee, from November 27, 2018, is remanded. Entitlement to a compensable disability rating for residuals, stress fracture, right tibia prior to November 27, 2018, is remanded. Entitlement to a disability rating in excess of 10 percent for residuals, stress fracture, right tibia, associated with arthritis right knee, from November 27, 2018, is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to September 1988. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2018 the Veteran testified before the undersigned during a travel Board hearing; a copy of the transcript is of record. When this case was previously before the Board in May 2019, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. During the pendency of this appeal in a June 2020 rating decision, the evaluation of residuals, stress fracture, right tibia, associated with arthritis right knee, was increased to 10 percent effective November 27, 2018. In an October 2020 rating decision, the evaluation of residuals, stress fracture, left tibia, associated with arthritis left knee, was increased to 10 percent effective November 27, 2018. This did not satisfy the Veteran's appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board is of the opinion that additional development is required before the Veteran's claims on appeal are decided. The Veteran was most recently afforded an examination to evaluate his tibias in September 2020 in which he reported that it hurt to walk, twist, or bend. Physical examination showed evidence of pain during active range of motion in flexion and in non-weight bearing; however, range of motion in degrees was not provided. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. However, compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. As the September 2020 examination report did not provide all of the information specified by Correia, the claim must be remanded for new VA examination to obtain the information necessary to properly adjudicate this claim. Finally, the Board notes that the issue of entitlement to TDIU is inextricably intertwined with the Veteran's increased rating claims and is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the current degree of severity of the service-connected residuals, stress fracture, left and right tibias associated with arthritis. The electronic claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. Ensure that the examiner provides all information required for rating purposes, to include a discussion of the functional and occupational impact of the residuals, stress fracture, left and right tibias. A full and complete rationale for any opinions expressed is required. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.