Citation Nr: 21065505 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-45 805 DATE: October 26, 2021 ORDER Service connection for right knee degenerative joint disease (DJD) is granted. REMANDED Entitlement to increases in the ratings assigned for lumbar disc bulge (currently rated 10 percent disabling prior to June 29, 2017, and 20 percent thereafter) is remanded. Entitlement to a rating in excess of 10 percent for left knee DJD is remanded. Entitlement to a compensable rating for cellulitis of the left leg is remanded. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's right knee DJD is related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for right knee DJD have been met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for lumbar disc bulge, rated 10 percent; DJD of left knee, rated noncompensable; and chronic mild residual cellulitis of the left leg, also rated noncompensable, all effective August 29, 2013. A July 2017 rating decision subsequently increased the rating assigned for lumbar disc bulge to 20 percent effective June 29, 2017, and granted a 10 percent rating for left knee DJD effective August 29, 2013. As neither rating constitutes a full grant of the benefits sought on appeal, these issues remain in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Agency of Original Jurisdiction (AOJ) last adjudicated the issues on appeal in a July 2017 statement of the case. Since that time, additional VA treatment records and a VA back examination have been added to the claim file. A waiver of AOJ review was not submitted for those records. Given the favorable nature of the grant of service connection for a right knee disability, there is no prejudice to the Veteran in the Board so proceeding. As the other issues are being remanded anyway, the RO will have an opportunity to consider this additional evidence in the first instance Service connection for right knee degenerative joint disease (DJD) is granted. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, "the preponderance of the evidence must be against the claim." Gilbert, 1 Vet. App. at 54. The Veteran contends that he had right knee pain during service. His service treatment records (STRs) only address complaints regarding his left knee. During VA treatment in October 1998, the Veteran reported discomfort in his bilateral knees and denied any new or recent injury. He stated that his discomfort started while in service, specifically beginning approximately 15 years prior (approximately 1983). DJD of the bilateral knees was diagnosed. During his June 2017 VA knee examination, the Veteran reported developing knee pain first during service, followed by right knee pain in 1982 from constant jumping off of a truck. The VA examiner opined that the Veteran's right knee is less likely proximately due to or the result of his service-connected left knee or back disability, stating that the right knee degenerative joint disease is a separate and unrelated condition and that there is no evidence-based medical literature to support that such can be caused by or the result of lumbar spine disc bulge or left knee DJD. The examiner did not provide an etiological opinion addressing whether the Veteran's right knee disability is directly related to service. During his October 2021 Board hearing, the Veteran competently and credibly testified that he has continued to experience right knee pain in and since service. He testified that his right knee pain occurred during service in 1982, which he self-treated, and that he has had on and off pain with that knee since service. His right knee disability was further compromised by his back and left knee disabilities. Based on the foregoing, the Board is left with a singular medical opinion that did not address whether the Veteran's right knee disability is directly related to his service and his competent statements and testimony that he experienced right knee pain while on active duty and since. The Veteran is competent to report the inception of symptoms in service and continuity since then. Accordingly, and after resolving any reasonable doubt in the Veteran's favor, the Board finds the evidence reflects his right knee disability began during service and have continued since his discharge, and service connection for right knee DJD is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to increases in the ratings assigned for lumbar disc bulge (currently rated 10 percent disabling prior to June 29, 2017, and 20 percent thereafter) is remanded. 2. Entitlement to a rating in excess of 10 percent for left knee DJD is remanded. 3. Entitlement to a compensable rating for cellulitis of the left leg is remanded. With respect to the issues regarding increased ratings for lumbar disc bulge, left knee DJD, and left leg cellulitis, the Veteran asserts that the disabilities have increased in severity. Based on his testimony of worsening symptoms, the Board finds that he should be afforded new examinations. See Snuffer v. Gober, 10 Vet. App. 400 (1997). During his October 2021 Board hearing, the Veteran also testified that he applied for Social Security Administration (SSA) disability benefits. Because his SSA records may reasonably contain information relating to the issues on appeal, remand is required to obtain them. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Additionally, and specifically with respect to the Veteran's back and left knee disabilities, VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA back and knee examinations of record do not fully comport with the requirements of Correia or Sharp. See, e.g., June 2014, June 2017, September 2019 VA examinations. Thus, remand is necessary for new VA spine and knees examinations. The Board also notes that the regulations pertaining to musculoskeletal disabilities were amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Secretary of VA has determined that "claims pending prior to [February 7, 2021] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." As pertinent to this issue, As pertinent to this issue, the June 2017 VA knee examiner noted that the Veteran regularly used a brace. Diagnostic Code 5257 now addresses recurrent subluxation/instability and a sprain and the use of an assistive device, either with or without a prescription from a medical provider. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 20202); 38 C.F.R. § 4.71A, Diagnostic Code 5257 (Feb. 7, 2021). The examination should be conducted in such a way that it includes findings consistent with the new requirements of Diagnostic Code 5257 from February 7, 2021, to present. The matters are REMANDED for the following action: 1. Request directly from the SSA relevant records, including determinations and medical records, regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted in the record and the reason for unavailability should be provided. 2. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received that have not previously been obtained. The Veteran must assist in the matter by identifying any private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. Obtain copies of VA treatment records from October 2019 to the present. Additionally, all records stored in Vista Imaging must be made available for inclusion in the Veteran's claim file. 4. After the development in #1-3 are complete, arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected back and left knee disabilities, to include retrospective opinions to the extent possible. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. Range of motion measurements should be included for active and passive motion in both weight-bearing and nonweight-bearing circumstances, including for the opposite undamaged joint, if applicable, for both (i) the present time and (ii) for the period from August 2013, if feasible. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. The examiner should address whether the Veteran has patellar instability of the left knee at any point during the appeal period. Beginning February 7, 2021, only, patellar instability is defined as a diagnosed condition involving the patellofemoral complex. Does the Veteran require a prescription by a medical provider for a brace, cane, and/or walker for his left knee? If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran, to include the period from August 2013. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.