Citation Nr: 18142746 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-40 953 DATE: October 16, 2018 REMANDED Entitlement to a rating in excess of 10 percent for degenerative disc disease, lumbar spine is remanded. Entitlement to a rating in excess of 10 percent prior to March 16, 2015, and in excess of 20 percent from March 16, 2015, for status post microfracture with lateral release, right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1989 to December 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. A September 2017 rating decision granted an increased evaluation to 10 percent for status post laminectomy with fusion, lumbar spine, for degenerative disc disease effective January 1, 2014, a temporary 100 percent rating from January 20, 2016, and reassigned the 10 percent evaluation from March 1, 2016. The September 2017 rating decision also granted an increased evaluation to 20 percent for status post microfracture with lateral release, right knee effective March 16, 2015, the date of a private treatment report. In July 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. 1. Entitlement to a rating in excess of 10 percent for lumbar spine is remanded. The Veteran contends that his service-connected lumbar spine disability has worsened since his last VA examination. Through the rating period on appeal, the Veteran’s service-connected lumbar spine disability has been rated at 10 percent under DC 5242 with a temporary total (100 percent) rating from January 2016 to February 28, 2016. 38 C.F.R. § 4.85 (2017). The Veteran was last examined by VA in September 2017. In his July 2018 hearing testimony, the Veteran reported debilitating symptoms that impact him daily. He has also submitted additional private treatment records documenting treatment for his back including bilateral L2-3, L3-4 facet rhizotomy and bilateral SI joint injection in February 2018. Because the Veteran’s back condition appears to have worsened since his last VA examination, a new examination is necessary to assess the present severity of the Veteran’s lumbar spine disability. 2. Entitlement to a rating in excess of 10 percent prior to March 16, 2015 and in excess of 20 percent from March 16, 2015, for status post microfracture with lateral release, right knee is remanded. The Veteran contends that his service-connected right knee disability is worse than currently rated. Through the rating period on appeal, the Veteran’s service connected right knee disability has been rated at 10 percent from January 1, 2014 and 20 percent from March 16, 2015. The Veteran underwent a VA examination for his right knee in June 2016. The examiner confirmed a diagnosis of degenerative arthritis of the right knee and chondromalacia of the right patella. On examination the examiner was unable to say without mere speculation whether the Veteran’s pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability during flare-ups. The examiner also noted that she could not determine without resorting to mere speculation whether the Veteran’s pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability with repeated use over a period of time. In July 2018 the Veteran underwent a VA examination for his left knee which included a Disability Benefits Questionnaire (DBQ) on knee and lower leg conditions which evaluated both knees. Regarding the right knee, the examiner indicated that she was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability during flare-ups. The examiner also noted that she could not determine without resorting to mere speculation whether the Veteran’s pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability with repeated use over a period of time. In his July 2018 hearing testimony, the Veteran indicated additional symptoms related to his right knee disability that do not appear to have been considered in his July 2018 VA examination. It is not clear whether the Veteran’s hearing testimony was added to the file and considered at the time of the July 2018 examination. Based on the Veteran’s hearing testimony and additional reported symptoms and functional limitations of his right knee, a new VA examination is necessary to determine the current severity of his right knee disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the current severity of his right knee disability and lumbar spine disability. The examiner must consider the additional right knee and lumbar spine symptoms and functional limitations identified by the Veteran in his July 2018 hearing testimony. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disability and lumbar spine disability separately and discuss the effect of the Veteran’s right knee disability and lumbar spine disability each on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.M. Floore, Associate Counsel