Citation Nr: 18160483
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 15-11 501
DATE:	December 27, 2018
Entitlement to an initial evaluation in excess of 10 percent for a right knee disability is remanded.
Entitlement to an initial evaluation in excess of 10 percent for a right ankle disability is remanded.
The Veteran served on active duty from July 1968 to July 1970.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  
The Veteran’s last VA examination of his right knee and ankle disabilities was in September 2012.  In his April 2015 substantive appeal, VA Form 9, the Veteran stated that his range of motion had worsened since that examination.  Accordingly, a remand is necessary in order to afford the Veteran another examination that adequately reflects the current severity of his disabilities on appeal.  See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995).
On remand, the Board also finds that any outstanding VA treatment records should also be obtained.  See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992).
The matters are REMANDED for the following action:
1. Obtain any and all VA treatment records not already associated with the claims file from the Miami and Orlando VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file.
2. Ensure that the Veteran is scheduled for a VA examination to determine the current severity of his right knee and ankle disabilities.  The claims file must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.  
Full range of motion testing must be performed where possible.  The right knee and ankle should be tested for pain in both active and passive motion, in weightbearing and non-weightbearing.  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.  
The examiner is further reminded that should any additional functional impairment be noted during flare-up, repeated use, and/or as a result of pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees.  If additional functional loss cannot be estimated, the examiner must provide an explanation for the inability to provide such an estimation.  The examiner is reminded that merely not observing the Veteran during flare-ups, etc., is not an adequate rationale for not estimating additional functional loss.  
All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Crosnicker, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit:

For More Information on Veterans Disability Compensation Benefits! Visit: ~ A Non-Profit Non Governmental Agency


Leave a Reply

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

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

Facebook photo

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

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.