Citation Nr: 20002929 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 12-31 187A DATE: January 14, 2020 REMANDED Entitlement to an evaluation in excess of 10 percent for arthritis of the right knee due to trauma. Entitlement to an evaluation in excess of 10 percent for arthritis of the left knee due to trauma. Entitlement to service connection for degenerative arthritis of the spine, to include as secondary to service-connected knee disabilities. REASONS FOR REMAND The Veteran served on active duty from May 1986 to May 1990 and from June 1991 to February 1993. This appeal is before the Board of Veterans’ Appeals (Board) from June 2009 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2014, the Veteran testified as to his claims for increased evaluations for his knee disabilities during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. At the time of his hearing, his claim for service connection for arthritis of the spine was not yet on appeal. In his October 2016 substantive appeal, he indicated that he did not want a hearing with regard to this issue. In March 2015, the Board denied the Veteran’s claims for increased ratings for his knee disabilities, as well as service connection for a disability of the left elbow. He filed a timely appeal to the knee issues with the United States Court of Appeals for Veterans Claims (Court), which vacated the Board’s denial in a September 2016 memorandum decision. In July 2017, the Board again denied the appeals for increased ratings as well as the appeal for service connection for degenerative arthritis of the spine. The Veteran again appealed to the Court, which vacated the decision in a March 2019 memorandum decision. The issues are therefore again before the Board. 1. Entitlement to an evaluation in excess of 10 percent for arthritis of the right knee due to trauma is remanded. 2. Entitlement to an evaluation in excess of 10 percent for arthritis of the left knee due to trauma is remanded. The March 2019 memorandum decision vacated the Board’s decision on the basis that the Veteran’s June 2009 VA examination was inadequate. Specifically, the Court noted that the examination report did not offer an opinion as to whether the Veteran experiences additional limitations in range of motion or functional loss during flare-ups and it did not specify whether testing was conducted in both active and passive motion and in both weight-bearing and non-weight-bearing circumstances. Remand is therefore necessary to provide the Veteran with a new examination that meets the requirements of caselaw over the intervening period. See Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 44-55 (2011). 3. Entitlement to service connection for degenerative arthritis of the spine, to include as secondary to service-connected knee disabilities is remanded. The March 2019 memorandum decision vacated the Board’s decision on the basis that the Board failed to adequately discuss the Veteran’s arguments regarding improper kneeling and lifting, in addition to altered gait, as a potential cause of his back disability. The Court also noted that the Veteran cited to medical literature in a statement accompanying his October 2016 substantive appeal. Furthermore, the Veteran has since submitted medical literature which contradicts the January 2017 VA examiner’s opinion regarding relationships between degenerative joint disease of the knees and the spine. As such, remand is necessary for a new medical opinion that addresses the Veteran’s contentions. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination to determine the level of severity of his knee disabilities. The examiner should report the extent of the Veteran’s disabilities in accordance with VA rating criteria. The claims file must be reviewed by the examiner. The examination report must specify whether range of motion testing was conducted in both active and passive motion and in both weight-bearing and non-weight-bearing circumstances. When veterans are not examined during flare-ups or immediately after repeated use over time, VA examiners must provide an estimate of such functional limitation in terms of degrees of motion. If such estimation is not possible without resort to speculation, examiners must give an explanation as to why this is so beyond merely noting that objective examination in such conditions has not been performed. In such a case there is necessarily a lack of objective testing and observation, and an estimation therefore must be based on statements by the veteran or other treatment records. If such an estimation is impossible, it must be clear that the impossibility is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. 3. Obtain an additional opinion for the Veteran’s spine disability from a qualified VA examiner. Following a review of the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that such spine disability is proximately due to or the result of his knee disabilities, or sustained an increase in severity beyond the natural progression of the disease that is proximately due to or the result of his knee disabilities (i.e., aggravated). In so doing, the examiner must explicitly address the medical literature cited by the Veteran, including that attached to his brief to the United States Court of Appeals for Veterans Claims and included in the record with the Court’s March 2019 memorandum decision, as well as that which was submitted to the Board in September 2019. The examiner must also address the Veteran’s contention that his spine disability was caused by his knee disability through improper bending, improper kneeling, and an altered gait or limp. A new examination may be ordered if the examiner deems it necessary. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.