Citation Nr: 18150905 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 13-26 233 DATE: November 16, 2018 REMANDED 1. Entitlement to increases in the “staged” (10 percent prior to September 2, 2015, 20 percent from September 2, 2015 to September 19, 2016, and 10 percent from that date) ratings assigned for left patellofemoral syndrome (PFS). 2. Entitlement to increases in the “staged” (10 percent prior to September 2, 2015, 20 percent from September 2, 2015 to September 19, 2016, and 10 percent from that date) ratings assigned for right PFS. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 2002 to April 2006 and from November 2006 to October 2007. This matter is before the Board of Veterans’ Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). An August 2018 CAVC Order remanded the matter for compliance with instructions in a July 2018 Joint Motion for Remand (JMR) by the parties. The matters were initially before the Board on appeal from a September 2012 rating decision, which, in relevant part, continued 10 percent ratings, each, for the knee disabilities. In May 2015, the case was remanded for additional development. An (interim) October 2015 rating decision increased the ratings for each knee to 20 percent, effective September 2, 2015. A November 2016 rating decision reduced the ratings for each knee to 10 percent, effective September 19, 2016. A November 2017 Board decision denied increases to all three “stages” of the respective ratings for each knee disability. The Veteran appealed the Board decision to the Court, resulting in the July 2018 JMR. 1., 2. Entitlement to increases in the staged ratings for the Veteran’s left and right knee disabilities, is remanded. On review of the Joint Motion, the Board finds that further development of medical evidence and AOJ adjudicatory action are necessary before the claim on appeal may be properly readjudicated. In the July 2018 JMR, the parties agreed that vacatur and remand was required for three reasons. First, the parties agreed that the Board failed to obtain all identified medical records. The Board’s November 2017 denial decision noted that in May 2013, a VA physician ordered an MRI of both knees; the record did not contain a report of that MRI. However, the Veteran testified at the January 2015 Board hearing that the MRI did not show any pertinent abnormalities. Accordingly, the Board found additional development for the MRI report would be pointless. However, citing to Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016), the parties agreed that the Board was required to obtain that record. It is not clear whether the MRI was by the VA or by a private provider. [If by VA, the was constructively of record and should have been obtained. If by a private provider, the Board notes that the Veteran did not provide (or submit authorization for VA to obtain) a report of the MRI.] Regardless, a remand to obtain the identified 2013 MRI report is now necessary (and if the MRI was by a private provider, the Veteran’s assistance will be necessary). Second, the parties agreed that the Board provided an insufficient explanation as to why a separate rating under Diagnostic Code 5257 (for instability) for each knee was not warranted. Although three VA examinations found no objective evidence of instability, the parties agreed the Board’s discussion was cursory in light of the Veteran’s use of knee braces, a walker, and a cane; the Board’s findings were also partially based on the outstanding MRI record. Accordingly, a remand for an examination which reconciles the Veteran’s reports of knee instability, and his use of assistive devices, with the multiple objective findings of no instability is necessary. [The Board notes that the most recent (September 2016) VA knee examination report contains results of initial range of motion testing as well as estimates during flare-ups, but does not contain results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Any further examination conducted on remand must be Correia-compliant.] Finally, the parties agreed that the Board must provide an adequate statement of reasons and bases regarding whether referral for consideration of an extraschedular rating is warranted. Consequently, on examination, the examiner should indicate whether the right and left knee disabilities have related symptoms or functional impairment not contemplated in the schedular rating criteria. If so, referral to the Director of the Compensation for consideration of an extraschedular rating would be warranted. The matters are REMANDED for the following: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for his service-connected knee disabilities, specifically including the cited 2013 MRI report (if by VA) and all records of treatment since November 2016 (when the most recent VA treatment records in the record were added to the record). If any records sought are unavailable, the reason for their unavailability must be noted in the record. If the 2013 MRI was by a private provider, obtain (with any necessary authorization by the Veteran) the MRI report and complete clinical records of any follow-up treatment. 2. Thereafter, arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left and right knee disabilities. The Veteran’s record (to include this remand and all records received pursuant to the development sought above) must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies (specifically including range of motion studies of the joints in active motion, passive motion, weight-bearing, and non-weight-bearing) should be completed. [If the knees cannot be tested on “weight-bearing,” the examiner must explain why such testing cannot be done.] All pathology, symptoms (their frequency and severity), and any associated impairment of function should be described in detail. The examiner should describe functional impairment of the Veteran’s knees during flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. [If an opinion cannot be without resort to speculation, indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training).] The examiner should specifically comment on the Veteran’s use of knee braces, walker, and/or cane, and their purpose (i.e., for support, for mobility, for weight-redistribution, for instability, for pain-relief, to prevent injury, etc.). The examiner must reconcile any finding of instability with the Veteran’s reports of such, and with his use of braces, walker, and a cane. The examiner should also indicate whether there are any symptom(s) or impairment associated with the knee disabilities that are not encompassed by the schedular criteria. The examiner should include rationale with all opinions. 3. If deemed appropriate following the examination sought above, the AOJ should refer the matter of the rating for the Veteran’s left and right knee disabilities to the VA Director of Compensation for consideration of an extraschedular increased rating. If referral is made, the AOJ should include a full statement outlining the medical evidence, January 2015 Board hearing testimony, and all other factors bearing on the matters. The AOJ should implement the Compensation Director’s determination. If referral is deemed not indicated, there should be an explanation for the record why that is so. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel