Citation Nr: 18157707 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 08-17 337 DATE: December 13, 2018 REMANDED ISSUES The issue of entitlement to an increased initial rating for a right knee disability, evaluated as 10 percent effective May 18, 1988 and 30 percent effective April 11, 2011 is remanded. The issue of entitlement to an increased initial rating for a left knee disability, evaluated as 10 percent disabling prior to April 11, 2011 and 30 percent since April 11, 2011 is remanded. The Veteran served in the U.S. Navy from December 1986 to May 1988. In April 2014, the Board remanded the Veteran’s increased rating claims for her left and right knee disabilities. In December 2014, the Board denied a rating more than 10 percent for left knee disability for the period prior to April 11, 2011 and more than 30 percent for the period since April 11, 2011. In December 2014, the Board denied a rating more than 10 percent since May 18, 1988 for right knee flexion, the Board denied a rating more than 30 percent for right knee extension since April 11, 2011, and the Board denied an additional 10 percent rating for instability since April 11, 2011 for right knee instability. The Veteran appealed the denial of an increased rating for left knee and right knee disabilities to the United States Court of Appeals for Veterans’ Claims (Court). In October 2016, the Court issued a memorandum decision and vacated the December 2014 Board decision; and remanded the Veteran’s appeal to the Board for further proceedings consistent with the Court’s decision. In August 2017, the Board remanded the claims to the regional office for an additional examination to comply with the Court’s directives. 1. Increased initial rating for a right knee disability, evaluated as 10 percent effective May 18, 1988 and 30 percent effective April 11, 2011 is remanded. 2. Increased initial rating for a left knee disability, evaluated as 10 percent disabling prior to April 11, 2011 and 30 percent since April 2011 is remanded. These matters are REMANDED for the following action: 1. REASON FOR REMAND: In its October 2016 remand, the Court directed that this appeal be forwarded to the appropriate VA official for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). The Veteran’s primary symptom appears to be functional loss because of significant bilateral knee pain. Although the reviewer must examine the evidence and procedure on file, the Board notes the record indicates as follows: In a June 2005 letter, the Veteran reported that she had continued knee problems since service which cause her pain in both knees when she walks, runs, climbs, or does other routine activities; In a November 2005 letter, the Veteran’s private physician stated that the Veteran had an arthroscopic knee surgery in the military and has continued to have chronic knee problems since service separation; A March 2007 radiographic study found no evidence of fracture or other significant bone or soft tissue abnormality of either knee; In March 2007, the Veteran was afforded a VA examination. The Veteran complained of pain in both knees. She reported that she had more swelling of her right knee than her left knee and that she wore soft brace on her right knee which was apparently at home during the examination. The Veteran also reported that she had “give-way” of both knees, the right knee worse than the left. The examiner noted that the Veteran had a limp with guarded movement and that she used a walking cane. The examiner noted that the Veteran had minimal edema of the right knee with tenderness and guarding of movement. Examination of the left knee showed “very” minimal edema with tenderness and guarding of movement. The examiner noted a “locking pain’ with crepitus of both knees. Range of motion testing indicated bilateral flexion to 95 degrees with pain and normal extension. However, the examiner observed that after repetitive use of the right and left knee, there was pain, fatigue, weakness and lack of endurance and incoordination. The examiner opined that the “maximum impact is due to pain bilaterally,” but contradictorily that there were “no additional degrees of limitation of motion. The examiner opined that the Veteran’s “daily activities [were] curtailed because of an inability to ambulate,” as she would like.” [does he mean she cannot ambulate at all, or to the extent that she has limitation in walking?] A September 2007 functional capacity report authored by treating physician Michael Charles, M.D. indicated the Veteran could sit from one to two hours daily; stand for one hour daily and walk for one hour daily. The physician reported that the Veteran could “occasionally” carry and lift up to ten pounds but not heavier. His pre-printed form indicates that the Veteran could not bend, crouch, squat, crawl, work on uneven ground or kneel, and could occasionally push/pull, climb stairs and ladders and lift above shoulder level. In September 2009, the Veteran was afforded a VA examination. The Veteran reported that she had weakness, stiffness, swelling, heat, redness, give-way, lack of endurance, locking, fatigability, tenderness and pain but she did not experience deformity, effusion, and contrary to her report of “give-way,” she did not experience subluxation. The examiner did not specify as to which of the Veteran’s knees these symptoms applied. She reported that she used a cane for fear of falling when he knees would give out. She did not require a brace, crutches, corrective shoes, a wheelchair, or walker. On the right knee, the examiner noted guarding of movement and crepitus. However, there were no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, deformity, malalignment or subluxation or ankylosis. On the left knee, the examiner noted guarding of movement and crepitus. However, there were no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, deformity, malalignment and no subluxation. The examiner noted the Veteran walked with a normal gait, including on tandem walking. The examiner also noted flexion to 90 degrees in both knees with normal extension. The examiner noted that as to the right knee, the Veteran had 95 degrees of flexion. He also noted that the Veteran had no additional degree of limitation of motion and that repetitive range of motion was possible. However, and somewhat contrary to the above findings, the examiner observed that on repetitive use, the Veteran’s right knee function was also limited by pain, and that pain was “the major functional impact.” He noted that joint function on the right was not additionally limited by fatigue, weakness, lack of endurance and incoordination on repetitive use. As to the left knee, the examiner also noted contrary to his above findings that that the joint function on repetitive use was limited by pain, and that pain was “the major functional impact.” He noted that joint function on the right was not additionally limited by fatigue, weakness, lack of endurance and incoordination on repetitive use. The examiner noted that the effect on the Veteran’s occupation is that she could not walk, squat or bend her knees. In a November 2009 statement, the Veteran reported that she had been unable to work since March 2004. She enclosed a VA form (“Request for Employment Information”) indicating that she had resigned her employment for “personal reasons.” During an October 2010 Board hearing before the undersigned, the Veteran testified in substance that one or both of her knees would collapse from side to side every day. In April 2011, the Veteran was afforded a VA examination. The examiner noted that the Veteran reported her right knee disorder had progressively worsened since her discharge from active duty. He recorded the Veteran’s account that she was unable to stand for more than a few minutes, and was only able to walk one-quarter of a mile. The Veteran also reported that she intermittently but frequently used a cane. The examiner noted the Veteran’s gait was normal The examiner noted the Veteran’s right knee disability was characterized by tenderness, pain at rest and mild instability. There was no crepitation, “clicks or snaps” but grinding was elicited. There was subpatellar tenderness noted. Active range of motion studies of the right knee indicated pain on movement. The Veteran’s right knee had flexion from zero to 100 degrees, and extension was limited by 20 degrees. Repetitive motion of the right knee flexion was from zero to 80 degrees and extension was from zero to “-20 degrees.” The examiner noted the Veteran’s left knee active range of motion included pain on movement. Flexion was from zero to 100 degrees and her left knee extension was limited by 20 degrees. Repetitive range of motion studies were from zero to 90 degrees and extension was from zero to “-20 degrees.” The examiner noted that “all movements were exaggerated with an emphasis on pain.” He noted that the Veteran grimaced on beginning movement of her knees. The examiner observed that there was decreased mobility and limited range of motion, the limitation was increased because of the Veteran’s “fear of more pain.” He also noted lateral instability which was slight during the examination, and no ankylosis or subluxation was noted. In June 2012 the Veteran’s private physician wrote that the Veteran has severe arthritis in her knees, her knees remain unstable, and her knees will lock up or suddenly give out on her. He observed that he recommended delaying action on total knee replacements “as long as possible.” In a separate treatment record dated in June 2012, a treating physician reported that since last treated, the Veteran’s bilateral patellofemoral syndrome with likely chondromalacia patella had worsened since her last treatment in February 2011. The Veteran reported to the physician that her biggest concern was “giving way” of her knees, and that another physician had recommended possible bracing. In May 2014, the Veteran was afforded a VA examination. As to her right knee, the Veteran reported that she had constant and daily pain on a scale of “10/10;” and that she could walk a few blocks, and stand 15 minutes when her knee would start to ache. She reported that her knee pain would worsened with weather and she would then wear a knee brace. The examiner observed that the Veteran had limitation of knee flexion “only Range of motion of the right knee was flexion to 120 degrees with pain at 115 degrees. Right knee extension was to zero degrees without objective evidence of painful motion. Repetitive range of motion testing on three trials was to 120 degrees flexion and to zero degrees extension. Left knee flexion was to 120 degrees with pain elicited at 115 degrees. Left knee extension was to zero degrees without objective evidence of painful motion. Repetitive range of motion testing on three trials was to 120 degrees flexion and to zero degrees extension. The examiner reported that the Veteran did not have additional limitation in range of motion of the knee following repetitive-use testing but had functional loss of both knees of less movement than normal, pain on movement and palpation, disturbance of locomotion. Anterior and posterior stability testing of both knees resulted in normal findings. The examiner opined that the Veteran’s knee disabilities do not impact her ability to work. The examiner also stated that loss of function due to flare-ups could not be determined without resorting to mere speculation but also indicated the Veteran has functional loss, functional impairment, or additional limitation of range of motion of the knee and lower leg after repetitive use. The examiner noted the Veteran has functional deficiencies including less movement than normal, pain on movement, and disturbance of locomotion. In June 2015, the Veteran was afforded a VA examination. The Veteran reported that her right knee would swell and was painful that she had difficulties with bending, climbing and walking. Although the Veteran reported that she had flare-ups of her knee disorder, the examiner reported that the examination was not being conducted during a flare-up. The examiner also noted functional impairment including limited range of motion due to pain as the result of walking long distances or climbing stairs. Initial range of motion study of the right knee resulted in normal findings of from zero to 140 degrees flexion and 140 to zero degrees extension. There was no evidence of pain on weight bearing but tenderness or pain on palpation of the right knee joint was elicited as was crepitus. The examiner opined that the pain elicited on examination did not result in functional loss. On repetitive use testing, range of motion measurements included flexion from 0 to 120 degrees and extension from 120 to 0 degrees in the right knee and flexion from 0 to 130 degrees and extension from 130 to 0 degrees in the left knee. The Veteran experienced pain, weakness, fatigability, and incoordination causing significant limitation during flare ups. The examiner performed stability testing and noted no instability in the Veteran’s knees. However, he found that as to the right knee and left knee, the Veteran’s functional loss consisted of swelling, disturbance of locomotion, and interference with sitting and standing. In October 2017, the Veteran was afforded a VA examination. The examiner noted range of motion measurements including flexion from 5 to 50 degrees and extension from 50 to 5 degrees in the right knee and flexion from 0 to 60 and extension from 60 to 0 in the left knee. The examiner noted a history of pain affecting function, decreased strength, and decreased range of motion. The Veteran also reported functional loss including inability to walk more than a few feet and inability to sit or stand in the same position for more than 15 minutes. The examiner noted instability of station in both knees and noted that the Veteran is guarded during her first few steps because this is the time when she is most likely to fall. The examiner also noted a history of bilateral knee pain and instability from previous medical treatment notes. The examiner stated that the Veteran could not tolerate stability testing. (Continued on the next page)   The Veteran may submit any further evidence or argument in support of the claims. The reviewer may direct any further evidentiary development. If the appeal is not resolved to the Veteran’s satisfaction, return the case to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Wozniak