Citation Nr: 20004811 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 12-30 191 DATE: January 21, 2020 REMANDED Entitlement to an initial evaluation in excess of 10 percent for right knee osteochondral injury, patellar maltracking, under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage (excluding the period from August 4, 2010 through August 3, 2011, during which time a temporary total rating under 38C.F.R. §4.30 was in effect), is remanded. Entitlement to an additional separate initial evaluation for right knee osteochondral injury, patellar maltracking, under Diagnostic Code 5260 for limitation of flexion, is remanded. Entitlement to an additional separate initial evaluation for right knee osteochondral injury, patellar maltracking, under Diagnostic Code 5261 for limitation of extension, is remanded. Entitlement to an initial evaluation in excess of 10 percent for left knee strain with degenerative changes is remanded. Entitlement to an initial evaluation in excess of 10 percent for cervical spine fracture with spondylosis, prior to April 21, 2015, is remanded. Entitlement to a staged initial evaluation in excess of 30 percent for cervical spine fracture with spondylosis, from April 21, 2015, is remanded. Entitlement to a staged initial evaluation in excess of 10 percent, prior to April 21, 2015, for low back strain with sciatica and segmental dysfunction of the thoracic spine, is remanded. Entitlement to a staged initial evaluation in excess of 20 percent, from April 21, 2015, for low back strain with sciatica and segmental dysfunction of the thoracic spine, is remanded. REASONS FOR REMAND The Veteran had active service from February 1998 to April 1998 and from April 2001 to January 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. These issues were initially before Board in March 2015 when they were remanded for additional development. Thereafter, in an August 2017 decision, with respect to the Veteran’s right knee disability, the Board found a separate evaluation of 20 percent was warranted from April 21, 2015 for right knee osteochondral injury, patellar maltracking, under Diagnostic Code 5261 for limitation of extension, (in lieu of Diagnostic Code 5259 for symptomatic removal of semilunar cartilage). In the August 2017 decision, the Board also denied entitlement to an initial evaluation in excess of 10 percent for right knee osteochondral injury, patellar maltracking, under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage, for the appeal period prior to April 21, 2015, entitlement to an initial evaluation in excess of 10 percent for right knee osteochondral injury, patellar maltracking, under Diagnostic Code 5260 for limitation of flexion, (in lieu of under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage) for the appeal period from April 21, 2015, entitlement to an initial evaluation in excess of 10 percent for left knee strain with degenerative changes, entitlement to an initial evaluation in excess of 10 percent for cervical spine fracture with spondylosis prior to April 21, 2015 and a staged initial evaluation in excess of 30 percent thereafter, entitlement to an initial evaluation in excess of 10 percent low back strain prior to April 21, 2015 and a staged initial evaluation in excess of 20 percent thereafter and entitlement to a compensable initial evaluation for traumatic brain injury (TBI). The Veteran appealed the August 2017 Board decision as to these determinations to the United States Court of Appeals for Veterans Claims (Court), and in a March 2019 Memorandum Decision, the Court vacated the Board’s decision to the extent that it denied increased ratings for the right and left knee disabilities, cervical spine fracture with spondylosis, and low back strain, and remanded these matters back to the Board for development consistent with the Memorandum Decision. Notably, the March 2019 Memorandum Decision affirmed the Board’s denial of entitlement to a compensable initial evaluation for TBI. In May 2014, the Veteran, his spouse, and his mother testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The record reflects VA associated VA treatment records with the record in December 2019 subsequent to the September 2015 Supplemental Statement of Case (SSOC) which addressed the appeal herein; however, as these claims are remanded below, there is no prejudice to the Veteran in this regard. 1. Evaluations for the appeal period prior to April 21, 2015, as to the Veteran’s right knee osteochondral injury, patellar maltracking, left knee strain with degenerative changes, cervical spine fracture with spondylosis, and low back strain, are remanded. The March 2019 Memorandum Decision found clarification of the May 2009 examination report was warranted as the examiner did not state at what point on examination the Veteran’s pain began for his cervical spine condition, his low back condition, and his left and right knee conditions. Additionally, although the May 2009 examiner found no weakness, fatigue, or incoordination for the disabilities at issue, the March 2019 Memorandum Decision found this was not the full scope of factors to be considered regarding incapacity and that remand was warranted for the Board to seek clarification of this examination with a focus on determining where the Veteran’s pain began and how that pain affected the Veteran’s functional loss in accordance with 38 C.F.R. § 4.40. The March 2019 Memorandum Decision also directed that when seeking clarification of the May 2009 VA examination report, the Board should also ensure that the Veteran was tested on active and passive range of motion, with weight-bearing and non-weight bearing, in accordance with Correia v. McDonald 28 Vet. App. 158 (2016) for the disabilities at issue. Thus, addendum opinions addressing these issues are warranted. 2. Entitlement to higher staged initial evaluations for the appeal period from April 21, 2015, for the Veteran’s right knee osteochondral injury, patellar maltracking, left knee strain with degenerative changes, cervical spine fracture with spondylosis, and low back strain, are remanded. The March 2019 Memorandum Decision found the April 2015 examination report was inadequate to assess the Veterans disabilities. Specifically, the March 2019 Memorandum Decision found that clarification of the April 2015 examination reports was warranted as the examiner indicated Veteran had, in part, additional contributing factors of disability which included less movement than normal due to ankylosis as to the right and left knee, low back, and cervical spine, but then determined that there was no ankylosis in these areas. The March 2019 Memorandum Decision also found the April 2015 examination reports did not comply with Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). However, the Veteran did not report flare-ups for the disabilities at issue during the April 2015 examinations. Nevertheless, the April 2015 examiner was unable to provide an opinion, without mere speculation, as to whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time for these disabilities as flare-ups of these conditions were not present at the time of examination. Further, the March 2019 Memorandum Decision did not address Correia v. McDonald 28 Vet. App. 158 (2016) in terms of the April 2015 examination reports; however, remand for compliance is also warranted. Thus, addendum opinions addressing these issues are warranted. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the following: (a.) Provide a retrospective opinion, to the extent possible, based on the May 2009 examination report, as to at what degree, in terms of range of motion, the Veteran’s pain began for his cervical spine disability, his low back disability, and his left and right knee disabilities and how this pain affected his functional loss for these disabilities as to any inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, including on repeated use and during flare-ups. (b.) Provide a retrospective opinion, to the extent possible, based on the May 2009 examination report, as to the Veteran’s range of active motion and passive motion, including with pain, on weight-bearing and nonweight-bearing, for his cervical spine disability, his low back disability, and his left and right knee disabilities. In this regard, the examiner should provide an estimate, if at all possible, of any additional impairment on repeated use and during flare-ups based on the evidence of record and the Veteran’s statements. If it is not possible to provide a specific finding without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) Provide a retrospective opinion, to the extent possible, in order to reconcile the contradictory findings of the April 2015 examination report regarding if the Veteran had any ankylosis in the right and/or left knee, low back and/or cervical spine. (d.) Provide a retrospective opinion, to the extent possible, based on the April 2015 examination report, as to the Veteran’s range of active motion, and passive motion, including with pain, on weight-bearing and nonweight-bearing, for his cervical spine disability, his low back disability, and his left and right knee disabilities, and any degree of functional loss during repeated use over a period of time and on flare-ups. In this regard, the examiner should provide an estimate, if at all possible, of any additional impairment based on the evidence of record and the Veteran’s statements. If it is not possible to provide a specific finding without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After undertaking any other development deemed appropriate, readjudicate the issues on appeal, to include whether separate evaluations for the right knee under Diagnostic Codes 5260 and 5261, in addition to under Diagnostic Code 5259, are warranted prior to, or from April 21, 2015. If any benefit sought is not granted, furnish the Veteran and his representative with a SSOC and afford them an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.