Citation Nr: 21061490 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-15 892 DATE: October 4, 2021 REMANDED Entitlement to an increased initial evaluation in excess of 10 percent disabling for chondromalacia patella, right knee, before May 7, 2014, is remanded. Entitlement to an increased evaluation in excess of 10 percent disabling for patellofemoral pain syndrome, left knee, before May 7, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1986 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and August 2010 rating decisions by the Roanoke, Virginia Regional Office (RO) of the United States Department of Veterans Affairs (VA). On May 24, 2021, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Partial Remand (JMPR) that remanded the issues of an increased initial evaluation in excess of 10 percent disabling for chondromalacia patella, right knee, before May 7, 2014, and an increased evaluation in excess of 10 percent disabling for patellofemoral pain syndrome, left knee, before May 7, 2014, both back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated June 1, 2021 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative submitted no new evidence, and the Veteran's representative submitted an updated appellate brief on September 9, 2021. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's JMPR will be discussed further in the remand section below. In January 2018 and again in May 2019, the Board remanded the above issues. Based on the Court's JMPR, the issues must again be remanded. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). By way of background, in a December 2009 rating decision, the evaluation for the left knee disability was increased to 10 percent disabling, effective July 4, 2009. In an August 24, 2020 Board decision, effectuated by a rating decision that same month, the evaluation for the right knee and left knee disability was increased to 20 percent, each effective from May 7, 2014. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in November 2016. A transcript of the hearing is associated with the claims file. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Veteran indicated in her hearing that she continues to work full-time, and she has not contended in any statement that her service-connected disabilities have prevented her from working. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that her service-connected disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that TDIU and SMC are not inferred by the record, and as such will not be discussed. 1. Entitlement to an increased initial evaluation in excess of 10 percent disabling for chondromalacia patella, right knee, before May 7, 2014, is remanded. 2. Entitlement to an increased evaluation in excess of 10 percent disabling for patellofemoral pain syndrome, left knee, before May 7, 2014, is remanded. The Veteran seeks higher evaluations for her service-connected left knee and right knee disabilities, from a claim for increased ratings received by VA on October 29, 2013. Her knees are each evaluated under Diagnostic Code 5260 at 10 percent disabling prior to May 7, 2014. The Veteran has asserted that a higher evaluation is warranted because of the degree of pain and physical limitations she endures on a daily basis, and that her knee joints are subject to excessive grinding and there is fluid buildup on each knee. Prior to the August 2020 Board decision, the Veteran's right knee and left knee disabilities were each evaluated under Diagnostic Code 5260, leg limitation of flexion, with a 10 percent evaluation for each knee during this period on appeal. After that Board decision, the evaluation for the right knee and left knee disability was increased to 20 percent, each effective from May 7, 2014, but prior to that date, the Board denied an increased rating in excess of 10 percent disabling for each knee. As noted above, the Court vacated and remanded the Board's August 2020 decision, with respect to the increased ratings for each knee prior to May 7, 2014. The Court allowed the Board's grant of higher 20 percent ratings for each knee from May 7, 2014 to stand. The Court, in its Joint Motion for Partial Remand (JMPR), called attention to the May 2014 and April 2019 VA examiners' reports and opinions, upon which the Board relied for its decision. No. 20-8060, 2021 U.S. App. Vet. Claims (May 24, 2021) (unpublished). The Veteran's first VA examination for her knees pertinent to this appeal was provided in May 2014. This examiner diagnosed chondromalacia patella in each knee. The Veteran reported symptoms of increased popping and cracking with increased pain, and that it is getting harder for her to get up from a prone or sitting position without external assistance from another human being. Initial range of motion measurements for the right knee were 140 degrees in flexion and zero degrees in extension, with no evidence of painful motion. For the left knee, there were 110 degrees in flexion, with painful motion beginning at 30 degrees; extension was measured at zero degrees with no pain on motion in that measurement. After three repetitions, for each knee, no additional loss of range of motion was noted. However, this May 2014 VA examiner did not take into account the Veteran's reports of flareups of her knee conditions, which made it more difficult for her to get up without assistance. This VA examiner stated he was unable to determine the nature and level of functional loss the Veteran would suffer during a flare-up because the VA examination was not conducted during a flare-up. The CAVC called attention to its precedential decision from 2017 that addresses what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA 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 could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In the instant CAVC decision regarding this Veteran's appeal, the CAVC noted that if the May 2014 VA examiner could not provide such an opinion without resort to speculation, the examiner was required to state the same while also identifying the basis for that view, including the lack of specific facts or the limits of medical knowledge. Id. The May 2014 examiner did not explain why Veteran's description of her flare-up symptoms was inadequate to render an opinion on functional loss. Similarly, an April 2019 VA examination of Veteran's knees included her statement that her flareups caused severe pain and an inability to walk, and occurred between once a week and once a month depending on the season. Despite these statements, the examiner stated that he could not offer opinions on the functional loss the Veteran would suffer during flare-ups or with repetitive use, while failing to identify the facts necessary to render a non-speculative opinion. The Court continued, noting that the Board relied on those May 2014 and April 2019 examinations for its evaluation for the Veteran's knee disabilities for both the pre- and post-May 2014 time periods on appeal. Since the Court considered both of those VA examinations to be inadequate for rating purposes, remand was therefore required to obtain new, adequate medical examinations, to include retrospective opinions as necessary to appropriately evaluate the Veteran's knee disabilities. In Chotta v. Peake, the CAVC explained that the duty to assist requires VA to assess whether a disability can be rated based upon the available evidence. 22 Vet. App. 80, 84 (2008). If a disability rating "cannot be awarded based on the available evidence," VA must determine whether a medical opinion, including a retrospective opinion, "is necessary to make a decision on the claim." Id. at 85. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with the claims file. 2. Contact the Veteran and request that she identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 3. After completion of the above, schedule the Veteran for a VA examination with a VA medical professional with expertise in orthopedics to determine the current nature and severity of her knee disabilities, to include all orthopedic and neurological manifestations. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner, to include appropriate imaging, should be conducted. The examiner should inquire of the Veteran as to periods of flare-ups, and note the frequency and duration of any flare-ups during the period on appeal. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examiner must provide a retrospective opinion relying on earlier examinations and any available medical records to provide an estimate of the frequency, duration, characteristics, severity, and/or functional loss of the Veteran's flare-ups of her knee disabilities prior to May 2014. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate informationi.e., frequency, duration, characteristics, severity, or functional lossregarding his flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. When considering the evaluation, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations, to include retrospectively as necessary. The examiner should view the Veteran as a reliable historian as to her service and her reports of her activities and symptoms in and since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Pursuant to the CAVC's remand in this case, the examiner is specifically requested to explain his/her reasoning behind any assessment of the Veteran's knee disabilities that go to the evaluation under the ratings criteria. 4. Thereafter, readjudicate the issues on appeal. Attention is invited to the recently revised 38 C.F.R. § 4.71a criteria for musculoskeletal disabilities, and the Veteran should receive the benefit of whatever criteria, old or revised, that provides a greater rating. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.