Citation Nr: 1807703 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 10-40 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease, twisting injury, of the right knee, prior to June 2, 2014. 2. Entitlement to a disability rating in excess of 60 percent for degenerative joint disease, twisting injury, of the right knee from August 1, 2015, to January 6, 2016. 3. Entitlement to a disability rating in excess of 60 percent for degenerative joint disease, twisting injury, of the right knee beginning March 1, 2017. 4. Entitlement to a disability rating in excess of 10 percent for left knee, status post-left infra patellar tendon repair, trauma. 5. Entitlement to an initial disability rating in excess of 10 percent for small rotator cuff calcific tendinosis status post right shoulder rotator cuff repair with scar (previously rated as right shoulder mild degenerative joint disease and rotator cuff calcific tendinosis, status post debridement with scar). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran had active service from July 1974 to April 1978 and from February 1979 to May 1995. This appeal to the Board of Veterans' Appeals (Board) is from October 2009 (knees) and May 2014 (shoulder) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the October 2009 rating decision, the RO denied entitlement to a rating in excess of 10 percent for degenerative joint disease, twisting injury, right knee, pursuant Diagnostic Codes (DCs) 5010-5260, and denied entitlement to a rating in excess of 10 percent for left knee, status post-left infra patellar tendon repair, trauma, pursuant to DC 5260. The Board then denied claims for higher ratings in February 2014. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), which issued an April 2015 Memorandum Decision vacating the Board's February 2014 decision and remanded the case to the Board for further development. In the interim, on June 20, 2104, the Veteran underwent a total right knee replacement. A March 2015 rating decision granted a 100 percent schedular rating pursuant to DC 5055 for the right total knee replacement, effective from June 2, 2014, to July 31, 2015, and a 30 percent rating from August 1, 2015, to January 6, 2016. An April 2016 rating decision granted a 100 percent schedular rating based on surgical or other treatment necessitating convalescence, effective from January 6, 2016. A March 2017 rating decision granted a 60 percent schedular rating for right total knee replacement (previously rated as degenerative joint disease, twisting injury, right knee), effective August 1, 2015. A 100 percent evaluation was assigned from January 6, 2016, and a 30 percent evaluation was assigned, beginning March 1, 2017. Thereafter, in a June 2017 rating decision, the Veteran was granted an evaluation of 60 percent for right total knee replacement (previously rated as degenerative joint disease, twisting injury, right knee), effective March 1, 2017. Accordingly, the Veteran's claim concerning his right knee has been recharacterized as reflected on the title page. The Board notes that in his June 2014 notice of disagreement (NOD), the Veteran asserted that his right shoulder rating should be higher than 10 percent and his effective date should be from July 25, 2012, the date of his surgery. However, the Veteran is currently in receipt of a 100 percent disability rating for the period from July 25, 2012, to October 1, 2012, and 10 percent thereafter. Therefore, the issue on the cover page has been characterized accordingly. These matters were remanded by the Board in August 2015 for further development and are again, REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Bilateral Knees The Veteran filed a March 2009 claim for increased rating for bilateral knee disabilities. He asserts that the overall severity of his symptoms, as evidenced throughout the course of the pending appeal, have not been adequately contemplated by the assigned schedular ratings. See August 2017 Appellate Brief. In an April 2015 Memorandum Decision, the Court vacated the part of the February 2014 Board decision denying the claims for higher ratings for the right and left knee disabilities, finding that an August 2013 VA examination report failed to describe the Veteran's current disability in sufficient detail, specifically because the examiner failed to adequately consider functional loss due to pain. The Court also noted that it was unclear whether the Veteran had been on pain medication during the August 2013 VA examination, and that if a new examination is provided to consider functional loss due to pain, the examiner should indicate whether the Veteran is medicated during the examination. Thereafter, the Board remanded the matter for development, including affording the Veteran an examination. The examiner was directed to determine whether there is any additional functional loss (i.e., additional loss of motion) of the right and/or left knee due to pain or flare-ups of pain supported by adequate objective findings, or additional loss of knee motion due to weakness on movement, excess fatigability, incoordination, or any other relevant symptom or sign with any additional limitation of motion expressed in degrees. Additionally, the examiner was also asked to review the August 2013 VA examination knee report and provide a retrospective opinion concerning any functional loss due to pain that was present at that time and a rationale for all opinions expressed must be provided or, if the examiner was unable to offer a requested opinion, that was to be stated and an explanation was to be provided. The Board notes that since the August 2015 Board remand, the Veteran was afforded multiple VA knee examinations, including in March 2016, August 2016, May 2017, and June 2017. The March 2016 VA examination report indicated that the Veteran reported taking oxycodone and Tylenol medication for pain; however the report did not indicate whether the Veteran had taken his medication the day of his examination. Further, the examiner indicated that she was unable to say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time because the Veteran was not examined under these conditions. The August 2016 VA examiner indicated that she did not know whether the Veteran had taken pain medication prior to each examination. She further indicated that the details of range of motion and any functional loss due to pain were provided in her August 2016 VA examination report. See August 2016 VA Addendum Opinion. However, in her August 2016 VA knee examination report, she indicated that she was unable to say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time because the Veteran was not examined under these conditions. Additionally, there was no indication in the report that pain medication information was solicited from the Veteran. The May 2017 VA examination report indicated that Veteran was taking oxycodone and Tylenol medication for pain, but had been completely off the oxycodone since approximately February 2017, and was currently taking gabapentin 100 mg twice a day with Tylenol (he took his gabapentin this morning, but not Tylenol). Although the examiner addressed current medication usage, the examiner indicated that she was unable to say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time because the Veteran was not examined under these conditions. Following the June 2017 VA knee examination, the examiner remarked that with regard to whether there was pain on passive range of motion testing, it could not be performed or is not medically appropriate and with regard to whether there was evidence of pain when the joint was used in non-weight bearing, it could not be performed or was not medically appropriate. Moreover, the examiner indicated that she was unable to say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time because the Veteran was not examined under these conditions. Additionally, the June 2017 left knee examination report did not address whether the Veteran had taken medications the day of his examination. Based on the above examination reports of record, a retrospective opinion for the period from March 16, 2009, to present, that complies with Correia and also adequately addresses functional loss due to pain is needed on remand. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the examiner should address whether the Veteran was taking pain medication during his VA examinations. Moreover, the Board notes that the examination reports of record revealed inconsistent findings. In this regard, the May and June 2017 VA knee examination reports indicated that the Veteran does not now have or has ever had recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment with the condition noted as a leg length discrepancy (shortening of any bones of the lower extremity). However, the August 2013 VA knee examination report noted the Veteran as now having or has ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment, indicated as leg length discrepancy (shortening of any bones of the lower extremity with right leg 98 cm and left leg 97 cm). As such, clarification is needed on remand. Right Shoulder The Veteran contends that a higher rating is warranted for his service-connected right shoulder disability. He reported that his right shoulder disability has gotten worse with age. See December 2016 VA Form 9. The Veteran was afforded a VA right shoulder examination in April 2014. However, the Board notes that the Veteran has not been afforded a VA shoulder examination since April 2014 and as the Veteran has reported worsening, the examination may not accurately reflect the current severity of his right shoulder condition. Therefore, the Board finds an updated VA examination is warranted on remand. Lastly, updated VA treatment records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Then schedule the Veteran for VA knee examinations to determine the current nature and severity of his right and left knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should specifically address the following: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. b) The examiner should specifically offer an opinion as to the impact of any functional loss due to pain during flare-ups, considering all procurable and assembled data, and by obtaining all tests and records that might reasonably illuminate the medical analysis. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, or functional loss manifestations related to flare-ups. If the examiner is unable to offer an opinion, he or she should clearly explain why. c) The examiner should specifically offer an opinion as to the impact of repetitive use over time on his functional ability. If the examiner deems it necessary, the Veteran should be asked to engage in repetitive use over time prior to the examination. d) The examiner should ask the Veteran whether the Veteran is medicated for pain during the current examination. e) The examiner should ask the Veteran to report whether he was taking pain medication(s) during his August 2013, March 2016, August 2016, and June 2017 VA examinations and indicate his response in the examination report. f) The examiner should review the August 2013 VA examination and provide a retrospective opinion concerning any functional loss due to pain or flare ups that was present at that time. If the examiner is unable to provide such an opinion, he or she should clearly explain the basis for that conclusion. g) The examiner should provide an opinion for the period from March 16, 2009, to present, addressing whether the Veteran now has or has ever had recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment with the condition noted as a leg length discrepancy (shortening of any bones of the lower extremity). The examiner should specifically address the August 2013 VA examination report which noted the Veteran as now having or has ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment, noted as leg length discrepancy (shortening of any bones of the lower extremity with right leg 98 cm and left leg 97 cm), and reconcile this with his his/her findings. A detailed rationale for all opinions must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the development in #1 has been completed, schedule the Veteran for a VA shoulder examination to determine the current severity of his right shoulder condition. The claims file must be made available to the examiner. a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion and, if possible, with range of motion measurements of the opposite undamaged joint. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. b) The examiner should specifically offer an opinion as to the impact of any functional loss due to pain during flare-ups, considering all procurable and assembled data, and by obtaining all tests and records that might reasonably illuminate the medical analysis. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, or functional loss manifestations related to flare-ups. If the examiner is unable to offer an opinion, he or she should clearly explain why. c) The examiner should specifically offer an opinion as to the impact of repetitive use over time on his functional ability. If the examiner deems it necessary, the Veteran should be asked to engage in repetitive use over time prior to the examination. A detailed rationale for all opinions must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After the above development is completed to the extent possible, review all relevant evidence and readjudicate the Veteran's claims. The Veteran and his representative should be furnished a SSOC and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).