Citation Nr: 18161329 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-06 367A DATE: December 31, 2018 REMANDED Entitlement to a rating greater than 20 percent for degenerative disc disease of the cervical spine is remanded. Entitlement to rating greater than 10 percent for service connected chondromalacia patella of the left knee is remanded. Entitlement to a rating greater than 10 percent for chondromalacia patella of the right knee is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Coast Guard from January 1982 to August 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied a rating greater than 20 percent for degenerative disc disease of the cervical spine, a rating greater than 10 percent for chondromalacia patella of the left knee, and a rating greater than 10 percent for chondromalacia patella of the right knee. As an initial matter, the Board notes that the appellant receives medical treatment through the VA health system. As such, on remand, the appellant’s most recent VA treatment records should be associated with the claims file. 1. Entitlement to a rating greater than 20 percent for degenerative disc disease of the cervical spine is remanded. The appellant asserts that his degenerative disc disease of the cervical spine is more disabling than currently rated. He contends that he has days where his range of motion is much less than it was the day of his examination. He also asserts that he has radicular pain from his neck down into both of his upper extremities. After a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating this claim. The appellant underwent a VA examination of his cervical spine in March 2012. At that examination, the appellant reported flare-ups of his condition that included feelings of electric pain shooting down his upper extremities. Range of motion testing did not demonstrate flexion of the cervical spine limited to 15 degrees or less under any circumstances, or ankylosis of the entire cervical spine. He was not found to have had any incapacitating episodes requiring prescribed bedrest in the prior 12 months. The appellant underwent another VA examination of his cervical spine in September 2013. This examination found the appellant to have moderate radiculopathy in both upper extremities. Range of motion testing did not demonstrate flexion of the cervical spine limited to 15 degrees or less in range of motion testing under any circumstances. Further, there was no ankylosis found of the cervical spine. The examiner did find the appellant had incapacitating episodes of at least 4 but no more than 6 weeks due to his disability; however, the examiner also noted that the appellant had not had any prescribed bed rest since his prior examination and there is no indication the appellant has ever been prescribed bedrest to treat an incapacitating episode. No flare-ups were reported at this examination. In the appellant’s March 2015 Appeal to the Board of Veteran’s Appeals (VA Form 9), he contended that his condition is worse than it is rated, and that he experiences days where he has less range of motion than found during his examination. The Board understands this as a statement by the appellant that he has flare-ups of his disability which cause functional limitation. As such, the Board finds that a new examination is necessary to determine the current severity of the appellant’s disability. On remand, the examiner should attempt to elicit relevant information regarding the nature, severity, and duration of the appellant’s flare-ups of the cervical spine and any additional functional loss suffered during flare-ups or after repeated use over time. To the extent possible, this additional functional loss should be recorded in degrees of range of motion lost. 2. Entitlement to rating greater than 10 percent for service connected chondromalacia patella of the left knee is remanded. The appellant asserts that his left knee disability is more disabling than currently rated. He also contends in his March 2015 VA Form 9, that the condition has gotten worse since his last VA examination. His representative also stated that the disability has become still more disabling in a December 2018 brief. As such, the Board finds that further development is necessary prior to adjudicating this claim, and that a new examination is necessary to determine the current severity of the appellant’s disability. The Board notes that the appellant is service connected for chondromalacia patella of the left knee only, and that this disability has been entitled to service connection since August 1988. At the appellant’s March 2012 VA examination, the examiner noted the appellant suffered from a tear of the meniscus in the left knee. The examiner opined that this meniscal tear was not caused by, or a natural progression of, the appellant’s service connected chondromalacia patella disability. As such, on remand, the examiner should carefully consider all disabilities in the left knee found on examination, and provide an opinion on whether any separate diagnosable disabilities are at least as likely as not part and parcel, caused by, or a progression of, the appellant’s service-connected chondromalacia patella of the left knee. The examiner should then provide an opinion on the functional impairment of the appellant’s service connected chondromalacia patella, and any related disabilities, alone. If there is ambiguity as to whether the appellant’s functional impairment is due to his service connected chondromalacia patella or to an unrelated disability of the knee, reasonable doubt must be resolved in favor of the appellant. See Mittleider v. West, 11 Vet. App. 181 (1998) (noting that when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the claimant’s favor and the symptoms in question attributed to the service-connected disability). On remand, the examiner should attempt to elicit relevant information regarding the nature, severity, and duration of any flare-ups and any additional functional loss suffered during flare-ups or after repeated use over time. To the extent possible, this additional functional loss should be recorded in degrees of range of motion lost. 3. Entitlement to a rating greater than 10 percent for chondromalacia patella of the right knee is remanded. The appellant asserts that his right knee disability is more disabling than currently rated. He also contends in his March 2015 VA Form 9, that the condition has gotten worse since his last VA examination. His representative also stated that the disability has become still more disabling in a December 2018 brief. As such, the Board finds that further development is necessary prior to adjudicating this claim, and that a new examination is necessary to determine the current severity of the appellant’s disability. The Board notes that the appellant is service connected for chondromalacia patella of the right knee only, and that this disability has been entitled to service connection since August 1988. At the appellant’s March 2012 VA examination, the examiner noted the appellant suffered from a tear of the meniscus in the right knee. The examiner opined that this meniscal tear was not caused by, or a natural progression of, the appellant’s service connected chondromalacia patella disability. As such, on remand, the examiner should carefully consider all disabilities found on examination in the right knee, and provide an opinion on whether any separate diagnosable disabilities of the right knee are at least as likely as not part and parcel of, caused by, or a progression of, the appellant’s service-connected chondromalacia patella. The examiner should then provide an opinion on the functional impairment of the appellant’s service connected chondromalacia patella, and any related disabilities, alone. If there is ambiguity as to whether the appellant’s functional impairment is due to his service connected chondromalacia patella or to an unrelated disability of the knee, reasonable doubt must be resolved in favor of the appellant. See Mittleider v. West, 11 Vet. App. 181 (1998) (noting that when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the claimant’s favor and the symptoms in question attributed to the service-connected disability). On remand, the examiner should attempt to elicit relevant information regarding the nature, severity, and duration of any flare-ups and any additional functional loss suffered during flare-ups or after repeated use over time. To the extent possible, this additional functional loss should be recorded in degrees of range of motion lost. The matters are REMANDED for the following action: 1. Obtain the appellant’s VA treatment records from October 2011 to the present. 2. Schedule the appellant for an examination of the current severity of his cervical spine disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repeated use over time. The examiner should also address any associated objective neurologic abnormalities. Schedule the appellant for an examination of the current severity of his left and right knee chondromalacia patella. The examiner should identify all symptoms and pathology associated with the service-connected right and left knee disabilities, to include whether he exhibits any arthritis, loss of range of motion, instability, or meniscal pathology. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repeated use over time. (Continued on the next page)   If the examiner finds any other disability or pathology in the appellant’s left and right knees, such as meniscal tears or arthritis, the examiner should discuss whether such pathology and symptoms are part and parcel of, caused by, or a progression of, the appellant’s service connected left and right knee chondromalacia patella. If it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, if any, reasonable doubt must be resolved in the claimant’s favor and the symptoms in question attributed to the service-connected disability K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel