Citation Nr: 20039167 Decision Date: 06/09/20 Archive Date: 06/09/20 DOCKET NO. 17-39 549 DATE: June 9, 2020 REMANDED Entitlement to a compensable disability rating for left knee chondromalacia patella is remanded. Entitlement to a disability rating in excess of 20 percent for chronic lumbosacral strain with moderate limitation of motion is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1982 to December 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned in February 2020. A transcript is of record. During the hearing, the undersigned granted an additional 90 days to hold the record open for the submission of additional evidence. In May 2020, additional evidence was received and associated with the claims file. The Board notes that five issues were addressed in the May 2017 statement of the case; however, in her July 2017 substantive appeal (VA Form 9), the Veteran limited her appeal to the two issues identified above. As such, the issues of entitlement to a disability rating in excess of 10 percent for right knee chondromalacia patella from May 1996 to January 2016, entitlement to a disability rating in excess of 30 percent for right knee status post total joint replacement from April 2018, and entitlement to a compensable disability rating for right knee scars, residuals of surgeries, are not before the Board at this time. 1. Entitlement to a compensable disability rating for left knee chondromalacia patella is remanded. 2. Entitlement to a disability rating in excess of 20 percent for chronic lumbosacral strain with moderate limitation of motion is remanded. The record indicates that the Veteran’s left knee chondromalacia patella and chronic lumbosacral strain have worsened since her last VA examination. Specifically, the Veteran has provided testimony as to increased left knee and lumbosacral spine symptoms and medical records reflect additional treatment. The Board notes that the Veteran last underwent VA examinations for her disabilities in April 2017, over three years ago. Therefore, a more contemporaneous medical examination is warranted. Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the rating of the disability will be a fully informed one); Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). Additionally, in Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) addressed the adequacy of a VA examiner’s findings concerning additional functional loss during flare-ups of a musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court held that VA examiners must estimate the functional loss that would occur during flare-ups. Specifically, examiners must name the precipitating and alleviating factors for the flare and estimate “per the veteran” the extent to which flares affect functional impairment. The Veteran reported at the April 2017 VA examination that she experienced flare-ups of her left knee chondromalacia patella and chronic lumbosacral strain; however, the VA examiner did not adequately estimate the functional loss that would occur during flare-ups. As such, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records. 2. Schedule the Veteran for a VA examination to address the severity of her left knee chondromalacia patella and chronic lumbosacral strain. The examiner is to review the entire claims file, to include a copy of this REMAND. A complete rationale for any opinions must be provided. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of the Veteran’s left knee and lumbar spine symptoms, and the effect of pain on range of motion. 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 she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of her left knee and lumbar spine 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. A full and complete explanatory rationale must be provided for any opinion offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. 3. Then, readjudicate the claims for higher ratings for left knee chondromalacia patella and chronic lumbosacral strain with consideration of all applicable diagnostic codes, to include neurological diagnostic codes. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.