Citation Nr: 1736672	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-28 123A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to a rating in excess of 10 percent for osteoarthritis of the lumbar spine, prior to March 16, 2016, and in excess of 20 percent beginning March 16, 2016.

2. Entitlement to a rating in excess of 10 percent for osteoarthritis of the left hip.

3. Entitlement to a rating in excess of 10 percent for osteoarthritis of the right hip.

4. Entitlement to a rating in excess of 10 percent for residuals of a fracture of the right distal fibula.


REPRESENTATION

Veteran represented by:	Oklahoma Department of Veterans Affairs
		


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Harrigan Smith, Counsel


INTRODUCTION

The Veteran served on active duty from April 1969 to October 1970.

This case comes before the Board of Veterans Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In January 2015 and February 2016, the Board remanded the case.  In August 2015, the Veteran testified at a Board hearing.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In February 2016, the Board remanded the issues on appeal, in part, in order to provide the Veteran with VA examinations to determine the current nature and severity of his service-connected osteoarthritis of the spine and hips, and residuals of a fracture of the right distal fibula.  The Veteran was provided with VA examinations in April 2016.  

The Board notes that a recent decision of the United States Court of Appeals for Veterans Claims (Court) provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59 and held that sentence creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. See Correia v. McDonald, 28 Vet. App. 158 (2016).  The Court's decision requires that VA examinations include range of motion testing of the pertinent joint for pain in active motion, passive motion, and in weight-bearing and nonweight-bearing.  The examination reports of record do not include range of motion testing for pain in nonweight-bearing as required by VA regulation and there is only one set of range of motion testing with no indication of whether such testing was passive or active.  Therefore, VA must provide an adequate examination that complies with the requirements of 38 C.F.R. § 4.59 to fulfill its duty to assist. 

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a new VA examination to determine the current severity of his osteoarthritis of the spine and hips, and residuals of a fracture of the right distal fibula. 

The examiner must test range of motion for pain for the lumbar spine, hips and right knee and ankle 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 this is so.

2. Readjudicate the issues on appeal, to include entitlement to increased ratings for cervical and lumbar spine (including sciatica of the right lower extremity) disabilities and entitlement to a TDIU. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order.

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.A. §§ 5109B, 7112 (West 2014).





_________________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).



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