Citation Nr: 1736663	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-16 196	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an increased disability rating in excess of 20 percent for the service-connected degenerative joint disease of the thoracolumbar spine.

2.  Entitlement to an initial disability rating in excess of 10 percent for the service-connected degenerative joint disease of the cervical spine.

3.  Entitlement to an increased disability rating in excess of 10 percent for the service-connected degenerative joint disease of the right knee.

4.  Entitlement to an increased disability rating in excess of 10 percent for the service-connected degenerative joint disease of the left knee.


REPRESENTATION

Appellant represented by:	National Association for Black Veterans, Inc.


ATTORNEY FOR THE BOARD

C. Ferguson, Counsel


INTRODUCTION

The Veteran, who is the appellant, had active service in the U.S. Marine Corps, from August 1985 to August 1991, and in the U.S. Navy from July 2004 to May 2005 and from July 2007 to June 2010. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

In June 2014, the Board remanded the appeals listed on the first page of this decision, as well as a TDIU appeal, to ask the Veteran to submit a formal claim for a TDIU, obtain VA treatment records from the Durham VAMC for the period from July 31, 2011 to July 31, 2012 and from February 2, 2013, schedule a VA examination to determine the severity of the service-connected spine and knee disabilities, and obtain an opinion from a vocational specialist on the Veteran's employability, and subsequently readjudicate the appeals.   In November 2015, the additional treatment records from the Durham VAMC identified in the Board remand were obtained.  In April 2016, VA examinations for the spine and knee disabilities were performed.  For reasons explained below, further examination is needed to clarify examination findings.   

In the May 2017 rating decision, a TDIU was established effective from June 21, 2010 to August 24, 2012.  The RO explained that the TDIU ended as of August 24, 2012, which was the date of the award of a 100 percent rating.  Because that issue of entitlement to a TDIU has been fully resolved in the Veteran's favor, it is no longer before the Board.

The appeals are REMANDED to the Agency of Original Jurisdiction (AOJ).  

REMAND

The issues of entitlement to increased ratings for the service-connected degenerative joint disease of the thoracolumbar spine, degenerative joint disease of the right knee, and degenerative joint disease of the left knee, and a higher initial rating the service-connected degenerative joint disease of the cervical spine for further VA examination.  During the course of the appeal and after the April 2016 VA examination was performed, in Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that the final sentence of 
38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.  The Court specified that VA examination reports should record the results of range of motion testing for pain on both active and passive motion.  At the April 2016 VA examinations, the service-connected thoracolumbar and cervical spine and knee disabilities were all manifested by pain and/or painful motion on examination; however, it is unclear if range of motion testing was provided for pain on both active and passive motion.  For these reasons, the Board finds that a remand for further VA examination is warranted. 

Accordingly, the case is REMANDED for the following actions:

1.  Schedule the appropriate VA examinations to assess the current nature and severity of the service-connected thoracolumbar and cervical spine disabilities, including associated neurological impairment, as well as for the service-connected left and right knee disabilities.  All relevant documents should be made available to and reviewed by the examiner.  The examiner should confirm that the record was reviewed. 

Based on review of the appropriate records and any necessary testing, the examiner should identify the symptoms the Veteran has manifested that are attributable to the service-connected thoracolumbar and cervical spine disabilities, including associated neurological impairment, as  well as the symptoms the Veteran has manifested that are attributable to the service-connected right and left knee disabilities. 

The examiner should test the range of motion for pain in active motion, passive motion, weight-bearing, and nonweight-bearing, for any joints affected by the thoracolumbar spine disability, cervical spine disability, left knee disability, and right knee disability.  

The examiner should comment on the extent of any incoordination, weakened movement, and fatigability on use due to pain must also be described by the examiner.  

If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination as well as on repeated use or during flare-ups in terms of the degree of additional range of motion loss. 

2.  Thereafter, readjudicate the remanded issues.  If any benefits sought on appeal remain denied, provide the Veteran and the representative with a supplemental statement of the case.  Thereafter, return the case to the Board for further appellate consideration, if in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This appeal 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).





_________________________________________________
J. PARKER
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) (2017).



Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s