Citation Nr: 21065143 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-24 749 DATE: October 25, 2021 REMANDED Entitlement to a rating higher than 10 percent for patellofemoral pain disorder with degenerative changes of the left knee is remanded. Entitlement to service connection for a thoracolumbar spine disorder as secondary to the service-connected right and left knee disabilities is remanded. Entitlement to service connection for a cervical spine disorder as secondary to the service-connected right and left knee disabilities and the thoracolumbar spine disorder is remanded. Entitlement to service connection for headaches as secondary to the cervical spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1984 to May 1990. This appeal stems from September 2015, February 2016, and September 2016 rating decisions. The Veteran testified before the undersigned in a March 2019 video conference Board hearing, the transcript of which is included in the electronic claims file. In August 2019, the Board remanded the appeal for further development. The case has since returned to the Board for further appellate consideration. On review, the Board finds that an additional remand is necessary to obtain an adequate examination to help determine the current severity of the left knee disability and to resolve the conflicting medical evidence regarding the service connection claims on appeal. Increased Rating for a Left Knee Disability Subsequent to the Board's remand, the Veteran underwent a September 2019 compensation examination, at which time he reported having flare-ups and functional loss after repeated use over time. However, although the examiner indicated that the examination report was medically consistent with the Veteran's statements describing functional loss during flare-ups/after repeated use over time, the examiner estimated that the range of motion will be the same as that recorded in the initial range of motion testing. In other words, the examiner agreed that pain significantly limited functional loss under these conditions but impermissibly provided no estimation as to what additional loss there will be. Accordingly, a new adequate VA examination is necessary. Service Connection Claims In its remand, the Board noted how treatment records showed that the Veteran had altered gait as a result of his service-connected bilateral knee disabilities. However, a September 2019 VA examiner opined that the Veteran's thoracolumbar spine and cervical spine disabilities were less likely than not aggravated by the service-connected knee disabilities specifically because there was no evidence of altered gait during the examination and aside from one indication of it in 2015. Subsequently, however, the Veteran submitted a private July 2020 independent medical examination report on which the physician indicated that the Veteran walked with antalgic gait and limp, which caused the thoracolumbar spine problems. Given this medical discrepancy, a new examination is necessary. Lastly, the cervical spine and headache disorder claims are intertwined with the thoracolumbar spine disability claim. If the Veteran's thoracolumbar spine disorder claim is granted on remand, additional VA examinations and medical opinions may be required as it pertains to the cervical spine and headache disabilities. The matters are REMANDED for the following action: 1. Ensure all outstanding VA treatment records are associated with the claims file. 2. Thereafter, provide the Veteran with a VA examination to help identify the current severity of the left knee disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the left knee disability throughout the pendency of the appeal. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-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. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 3. Thereafter, provide the Veteran with a VA examination to help determine the likely etiology of the claimed thoracolumbar spine disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: State whether it is at least as likely as not (50% or greater probability) that the Veteran's thoracolumbar spine disorder is either caused or aggravated by his service-connected bilateral knee disabilities. **The examiner must address VA treatment records showing that the Veteran has an altered gait and uses a cane. See e.g., July 2015 VA treatment note; see also May 2019 VA examination report (indicated that the Veteran had muscle spasms that resulted in an abnormal gait or abnormal spinal contour); see also Veteran's statements in March 2019 Board Hearing Transcript; see also Independent medical examination VBMS entry titled "Third Party Correspondence" on 07/29/2020. A complete rationale should be provided for all opinions on both causation AND aggravation. 4. If, and only if, a positive VA opinion is obtained with regard to remand directive #3 (lumbar spine), schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his claimed cervical spine disorder. The examiner must opine whether it is at least as likely as not that the Veteran's cervical spine disorder is caused or aggravated by the Veteran's thoracolumbar spine disability. Please provide a complete rationale for all opinions. 5. If, and only if, a positive VA opinion is obtained with regard to remand directive #4 (regarding the cervical spine disability), schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his claimed headache disorder. The examiner must opine whether it is at least as likely as not that the Veteran's headache disorder is caused or aggravated by the Veteran's cervical spine disability. Please provide a complete rationale for all opinions. 6. Thereafter, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.