Citation Nr: 21003982 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-03 982 DATE: January 25, 2021 REMANDED Entitlement to service connection for a left hip disability, to include as secondary to a service-connected right knee disability, is remanded. Entitlement to an initial rating in excess of 10 percent for a right patella fracture with degenerative joint disease is remanded. Entitlement to an initial rating in excess of 10 percent for right knee subluxation is remanded. Entitlement to an initial rating in excess of 10 percent for a chronic low back strain and chronic thoracic spine strain is remanded. REASONS FOR REMAND The Veteran had active duty service from February 2007 to February 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for right patellar fracture with degenerative joint disease and chronic low and thoracic spine strain and assigned 10 percent ratings, effective February 29, 2008, respectively, and denied service connection for a left hip disability. The Veteran and his sister testified before the undersigned Veterans Law Judge (VLJ) at a hearing in June 2014. A copy of the transcript has been reviewed and associated with the claims file. In a January 2016 rating decision, the RO granted service connection for right knee subluxation and assigned a 10 percent disability rating, effective December 4, 2015. These matters were before the Board in September 2014, July 2016, and November 2017, at which time they were remanded for additional evidentiary development. 1. Entitlement to an initial rating in excess of 10 percent for a right patella fracture with degenerative joint disease is remanded; 2. Entitlement to an initial rating in excess of 10 percent for right knee subluxation is remanded. Pursuant to the Board’s remand instructions, a VA examination was performed in January 2018. At that time, the examiner diagnosed the Veteran with a right knee fracture, knee joint osteoarthritis, recurrent subluxation, and knee instability. He underwent a partial patellectomy revision surgery in 2008 and complained of paresthesias to his right lower leg and kneecap since the surgery. Active range of motion testing was performed and revealed flexion from 15 to 115 degrees and extension from 115 to 15 degrees. The Veteran reported flare-ups of his right knee pain and the examiner indicated that he was unable to provide an opinion regarding loss of range of motion during a flare up without resorting to mere speculation because he was not having a flare-up at that time. Given the failure of the examiner to provide an opinion regarding passive range of motion testing and during a flare and discrepancy of active motion testing from 15 to 115 in lieu of 0 to 115, the RO requested an addendum opinion. An addendum opinion was issued in August 2020. However, instead of providing an estimate of the severity, including range of motion of the right knee, the examiner provided unsolicited opinions regarding the nature of his service-connected right knee disability and indicated that he had no pathology or diagnosis of right knee subluxation and indicated that he only described flare-ups of his right knee pain during disability examinations. Given the failure of the January 2018 examiner to provide an accurate estimate of his active range of motion and the lack of passive range of motion testing and during a flare-up, the Board finds that a new VA examination is warranted on remand, by an examiner who has not previously provided an opinion in this matter, in order to determine the severity of his service-connected right knee disability. 3. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected right knee disability, is remanded. Pursuant to the Board’s remand instructions, a VA examination was performed in January 2018. The examiner indicated that the Veteran denied a current left hip problem and that his records are void of left hip problems. An addendum opinion was issued in August 2020, at which time the examiner indicated that the Veteran has not complained of, been worked up for, been diagnosed with, or treated for any left hip complaints during military service or since. Furthermore, the examiner indicated that although in November 2008 the Veteran was assessed with left hip pain and popping, this was not a diagnosis. Lastly, the examiner indicated that the Veteran was diagnosed with left trochanteric pain syndrome in December 2015, but this was only a diagnosis for purposes of disability compensation. After a review of the evidence, the Board finds that the January 2018 examination and August 2020 addendum opinion are insufficient to determine the present claim. In this regard, the Veteran complained of left hip pain immediately after discharge from service. Furthermore, he was diagnosed with trochanteric pain syndrome on the left during his December 2015 VA examination. The examiners did not assess the Veteran’s pain complaints and diagnosed disability and failed to render an opinion regarding whether his left hip pain or diagnosed left hip disability was incurred in service and/or secondary to his service-connected right knee disability. Accordingly, the Board finds that a new VA examination is warranted on remand, by an examiner who has not previously provided an opinion in this matter, to determine the nature and etiology of his left hip disability. 4. Entitlement to an initial rating in excess of 10 percent for a chronic low back strain and chronic thoracic spine strain is remanded. Pursuant to the Board’s remand instructions, a VA examination was performed in January 2018. At that time, the examiner assessed the Veteran with a lumbosacral strain, intervertebral disc syndrome (IVDS), and sciatica. The Veteran reported flare-ups of his right knee pain and the examiner indicated that he was unable to provide an opinion regarding loss of range of motion during a flare up without resorting to mere speculation because he was not having a flare-up at that time. Although active range of motion testing was performed, the examiner did not perform passive range of motion testing. Lastly, the examiner later indicated that the Veteran did not have a diagnosis of IVDS of the thoracolumbar spine and radiculopathy. Given the failure of the examiner to provide an opinion regarding passive range of motion testing and during a flare, the RO requested an addendum opinion. An addendum opinion was issued in August 2020. However, instead of providing an estimate of the severity, including range of motion of the lumbar spine, the examiner provided unsolicited opinions regarding the nature of his service-connected lumbar spine disability and indicated that he had no thoracic or lumbosacral spine disability due to military service. Given that he had no lumbar spine disability related to service, the examiner then concluded that he would have no limited functional ability during a flare up because he had no diagnosis at the time military service. Given the failure of the January 2018 examiner to provide an estimate of his passive range of motion and during a flare-up, and the discrepancy of whether the Veteran has a diagnosis of IVDS, the Board finds that a new VA examination is warranted on remand, by an examiner who has not previously provided an opinion in this matter, in order to determine the severity of his service-connected lumbar spine disability. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from August 2020 to the present. 2. After completion of #1, schedule the Veteran for a VA examination, by an examiner who has not previously provided an opinion in this matter, to determine the nature and severity of his service-connected lumbar spine disability. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history.   Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any.  Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted.  If the examiner is unable to conduct this testing, he or she should explain the reasoning and attempt to elicit this information from the record and provide an estimate. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply.    The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement.  The extent of additional limitation should be expressed in degrees.  Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss.  He or she should estimate the degree of lost motion during such flare-ups.  The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given.  Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner.  If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident.    The examiner must indicate if the Veteran has a diagnosis of intervertebral disc syndrome at any time throughout the pendency of this claim (since 2008). If the examiner finds that the Veteran has intervertebral disc syndrome, he or she must also state the total duration of incapacitating episodes due to intervertebral disc syndrome over any given 12-month period, if such episodes have been present at any point during the appeal period. Incapacitating episodes are defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Complete neurological findings should also be included. The examiner should discuss the Veteran’s diagnosis of sciatica in 2008 and reports of daily numbness below his knee and indicate if he had any associated neurological disorders throughout the pendency of this claim (since 2008). The examiner must provide a comprehensive rationale for each opinion provided.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.    If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record.    3. After completion of #1, schedule the Veteran for a VA examination, by an examiner who has not previously provided an opinion in this matter, to determine the severity of his service-connected right knee disability. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history and such review should be noted in the examination report. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted, and such results should be recorded. The examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. The examiner is advised that the Veteran has reported flare-ups of right knee pain throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner is to attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The presence or absence of ankylosis should be noted. The examiner is to indicate the presence or absence of lateral instability and/or recurrent subluxation in the Veteran’s right knee, if any. If instability is present, the examiner is to state whether such instability is slight, moderate, or severe. If instability is not found, the examiner should so state. Further, the examiner must indicate whether there is cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion of the joint or partial removal of the semilunar cartilage. The examiner must provide a comprehensive rationale for each opinion provided.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.    If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record.    4. After completion of #1, schedule the Veteran for a VA examination, by an examiner who has not previously provided an opinion in this matter, to determine the nature and etiology of any left hip disability. The claims file, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner must identify any left hip disability or pain found on examination and identified during the pendency of this claim (since 2008), including trochanteric pain syndrome, and respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s left hip disability had its onset in and/or is otherwise related to his period of active service? B. For any left hip disability, is it at least as likely as not (probability of at least 50 percent) that it was caused by his service-connected right knee disability? If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s left hip disability has been aggravated (any incremental increase in disability) as a result of his service-connected right knee disability? If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and left hip disability that shows a baseline of his left hip disability prior to aggravation? If so, please identify. The examiner must provide a comprehensive rationale for each opinion provided.  Specifically, the examiner should discuss the Veteran’s June 2014 hearing testimony where he indicated that his altered gait due to his service-connected right knee disability impacted his left hip and his January 2010 and September 2020 statements indicating that he had complaints of left hip pain and popping since service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.    If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.