Citation Nr: 18160570
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-41 716
DATE:	December 27, 2018
REMANDED
The claim of entitlement to a rating greater than 20 percent for right knee strain is remanded.
REASONS FOR REMAND
The Veteran served in the United States Army from April 1984 to September 1991.
This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2014 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, inter alia, increased the rating for service-connected right knee strain from 10 percent to 20 percent, effective September 12, 2013. In February 2015, the Veteran filed a notice of disagreement (NOD) only disputing the 20 percent rating for a right knee strain.  In June 2016, the RO issued a statement of the case, and, in August 2016, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). 
During the pendency of the appeal, the Veteran’s claims file was transferred to the jurisdiction of the RO in Atlanta, Georgia.
In February 2018, the Veteran filed a Motion to Advance on the Docket, and in March 2018 the Motion was denied. 
The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the claim on appeal, prior to appellate consideration, is warranted. 
The Veteran underwent a VA examination in April 2016, at which time right knee range of motion testing revealed flexion from 0 to 90 degrees with pain and extension from 140 to 0 degrees with pain. The examiner noted no crepitus, flare-ups, recurrent subluxation or lateral instability. No additional functional loss was appreciated with repetitive testing. The examiner also commented that the Veteran’s right knee disability results in functional impairment, to include difficulty going up and down stairs and bending at the knee. It was noted that the Veteran uses assistive devises to include a brace and cane. The Veteran reported daily pain, popping, and an inability to straighten his knee out. 
Unfortunately, the Board finds a deficiency in the April 2016 VA examination. Although the VA examination findings were negative for flare-ups, this is inconsistent with the Veteran’s treatment records, to include evidence that the Veteran sought treatment for right knee flare-ups in March 2016. 
In addition, the Veteran contends his right knee has worsened since he was last examined. Specifically, the Veteran alleged that his range of motion has decreased drastically. See August 2016 VA Form 9. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994). 
The Board further notes that, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal 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.  In this case, however, neither the April 2016 VA examination report nor other medical evidence clearly indicates that such testing has been accomplished in case.   
Under these circumstances, the Board finds that the medical evidence of record is insufficient for evaluation of the Veteran’s right knee disability; hence a remand of this claim to afford the Veteran an additional examination to obtain findings needed to properly evaluate the disability is warranted.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 
Accordingly, on remand, the AOJ should arrange for the Veteran to undergo VA knee examination by an appropriate clinician.  The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of his increased rating claim.  See 38 C.F.R. § 3.655(b).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.
Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.
As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Augusta, Georgia, and that records from those facilities dated through April 2016 are associated with the file; however, more recent records may exist.  Therefore, the AOJ should obtain from the Augusta VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran since April 2016, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding requests for records from Federal facilities.
The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that he has a full one-year period to respond.  See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period).  In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records.
Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159.
The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal.  Adjudication of the claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. 
The matter is hereby REMANDED for the following action:
1. Obtain from the Augusta VAMC all outstanding records of evaluation and/or treatment of the Veteran, dated since April 2016.  Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.
2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records.
Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period).
3.  If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.
4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA knee examination, by appropriate medical professional, to assess the current severity of his right knee disability.  
The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician, and the examination report should reflect consideration of the Veteran’s documented medical history and lay assertions. 
The examiner should conduct range of motion testing of the right knee (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing (as appropriate). The examiner should also conduct range of motion testing of the left knee, for comparison purposes. 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 so state and explain why.
On range of motion testing of the right knee, the examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins.
Also, if the examination is not conducted during a flare up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion.
Additionally, the examiner should indicate whether there is any ankylosis in the right knee, and, if so, whether it is favorable or unfavorable, and the angle at which the knee is held.
Further, the examiner should indicate whether there is subluxation or lateral instability in the right knee, and, if so, whether such is mild, moderate, or severe.
All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.
5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).
6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include consideration of whether staged rating of the right knee disability is appropriate).
 
JACQUELINE E. MONROE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	W. Wells, Associate Counsel

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