Citation Nr: 20009998 Decision Date: 02/06/20 Archive Date: 02/06/20 DOCKET NO. 18-02 234 DATE: February 6, 2020 ORDER A rating of 10 percent for right knee strain is granted. REMANDED A rating in excess of 10 percent for right knee strain is remanded. A rating in excess of 10 percent for left knee osteochondritis dissecans is remanded. Service connection for lumbosacral strain and degenerative arthritis of the spine is remanded. FINDINGS OF FACT The Veteran’s right knee is manifested by painful motion. CONCLUSIONS OF LAW The criteria for a 10 percent rating for right knee condition have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a DC 5260 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1975 to November 1979, from March 1980 to February 1983 and from February 1983 to September 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). On August 2019, the Veteran submitted a VA form 10182 (Decision review request) that is not a valid opt in. See 38 C.F.R. § 3.2400. Therefore, the Board will adjudicate the issues on appeal under the legacy system. Increased Rating The Board finds that a rating of at least 10 percent is warranted for right knee strain throughout the appeal. Where a veteran has a noncompensable rating for a musculoskeletal disability and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. In this case, the evidence shows the Veteran reported that his right knee strain is manifested by painful motion throughout the appeal period. Thus, the Board finds that a 10 percent rating is warranted for this disability during the appeal. In reaching this determination, the Board observes that the Court has held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). REASONS FOR REMAND Left knee, right knee and low back conditions Throughout the appeal, the Veteran has reported that his left and right knee conditions warrant an increase rating because the condition continues to worsen and he continues to receive treatment for the conditions. As such, these issues must be remanded. In addition, the Veteran reported that his current low back condition is due to a motor vehicle accident that is noted in his military medical records. The Board finds that a remand is necessary for a VA examiner to determine the onset and nature of his low back condition. Additionally, the examiner should opine if his current low back condition is related to his in-service injury, or if it is a result of his service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain complete VA treatment records of the Veteran’s left knee, right knee and low back conditions. 2. Notify the Veteran that he may submit any medical evidence regarding his treatments for his left knee, right knee and low back conditions. He may also submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his conditions, nature, extent, impact and severity of his symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Arrange for the Veteran to undergo a VA examination and for the examiner to provide opinions on the current symptoms, severity and impact of the Veteran’s service-connected left and right knee. The examiner should identify all right knee and left knee impairment found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Arrange for the Veteran to undergo a VA examination to determine the nature, onset and etiology of his low back condition, including if this condition is caused or aggravated by his in-service injuries or service-connected conditions. The examiner must opine as to whether it is at least as likely as not that the Veteran low back condition is related to or had its onset in service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- Associate 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.