Citation Nr: 21071135 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-04 985A DATE: November 29, 2021 REMANDED Entitlement to an initial rating higher than 20 percent for degenerative arthritis of the spine is remanded. Entitlement to a rating higher than 10 percent for right patellofemoral pain syndrome (also claimed as numbness in legs) is remanded. Entitlement to a rating higher than 10 percent for left patellofemoral pain syndrome (also claimed as numbness in legs) is remanded. REASONS FOR REMAND The Veteran had active service from March 1991 to January 1996. Issues 1-3: Entitlement to an initial rating higher than 20 percent for degenerative arthritis of the spine; entitlement to a rating higher than 10 percent for right patellofemoral pain syndrome (also claimed as numbness in legs); and entitlement to a rating higher than 10 percent for left patellofemoral pain syndrome (also claimed as numbness in legs). The Veteran was last afforded a VA knee examination and a VA back examination in December 2019. During the December 2019 VA knee examination joint stability tests were normal. During the July 2021 Board hearing the Veteran testified that his bilateral knee disability got worse, he has swelling and instability in his knees and is unable to climb stairs. The Veteran reported falling down the stairs. As for the back, there appear to be inconsistent findings as the examiner on VA examination in December 2019 determined that the Veteran did not have intervertebral disc syndrome, however treatment records in August 2019 show intervertebral disc syndrome. Further, during the July 2021 Board hearing the Veteran testified that approximately a year ago he received injections at the VA hospital for back pain. He testified that he has constant back pain "24/7." Thus a remand is necessary to determine the current level of severity of the Veteran's bilateral knee disability and back disability and to reconcile the inconsistent findings regarding the Veteran's back disability. An attempt also needs to be made to obtain any outstanding VA treatment records to include records pertaining to the Veteran's injections for back pain. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Diagnostic Code 5257 for recurrent subluxation or instability of the knee was among the Diagnostic Codes revised effective February 7, 2021. The Veteran's back disability has been rated under Diagnostic Code 5242. Changes were made to Diagnostic Code 5242 noting that the code pertains to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. It is also noteworthy that as for Diagnostic Code 5243 for intervertebral disc syndrome, this diagnostic code now applies when there is disc herniation with compression and/or irritation adjacent to the nerve root, otherwise a rating is to be assigned for Diagnostic Code 5242 for all other disc diagnoses. See 85 FR 76453, 76463, Nov. 30, 2020. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding medical records, including VA hospital records documenting injections for back pain from 2020 to 2021 that the Veteran referenced during his July 2021 Board hearing. All attempts associated therewith should be memorialized in the Veteran's claims file. 2. Schedule the Veteran for an examination to determine the current level of severity of his service-connected degenerative arthritis of the spine. The claims file must be made available to the examiner for review in conjunction with conducting the examination of the Veteran. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the disabilities under the rating criteria effective prior and after February 7, 2021. a.) The examiner is asked to report range of motion findings that are painful on active use, passive use, in weight-bearing, and non-weight-bearing. To the extent possible the examiner also must estimate any additional functional loss caused by the Veteran's flare-ups. The examiner must attempt to elicit information regarding the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares to include the degree of functional loss during flare-ups from the Veteran himself. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), or a deficiency in the record (additional facts are required). b.) The examiner is asked to determine whether the Veteran has had intervertebral disc syndrome (IVDS) based on incapacitating episodes. The examiner should report the number of incapacitating episodes due to IVDS that the Veteran has experienced as well as their duration in the past twelve months. (NOTE: For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician). To the extent possible the examiner is asked to reconcile inconsistencies in the record and opine as to whether during the appeal period the Veteran has had IVDS based on incapacitating episodes and if so the duration of the incapacitating episodes. Specifically the examiner is asked to consider that on VA examination in December 2019 the examiner determined that the Veteran did not have IVDS while treatment records in August 2019 show IVDS. A complete rationale must be provided for any opinion expressed. If any opinion cannot be provided without resorting to mere speculation, the examiner must affirm that all procurable and assembled data was fully considered and fully explain why this is the case and identify what additional evidence/information (if any) may allow for a more definitive opinion. 3. Schedule the Veteran for a knee examination to determine the level of severity of his service-connected bilateral patellofemoral pain syndrome. The claims file must be made available to the examiner for review in conjunction with conducting the examination of the Veteran. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the disabilities under the rating criteria effective prior and after February 7, 2021. a.) The examiner is asked to report range of motion findings in the right knee that are painful on active use, passive use, in weight-bearing, and non-weight-bearing. To the extent possible the examiner also must estimate any additional functional loss caused by the Veteran's flare-ups. The examiner must attempt to elicit information regarding the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares to include the degree of functional loss during flare-ups from the Veteran himself. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), or a deficiency in the record (additional facts are required). b.) The examiner is asked to evaluate the Veteran's complaints of bilateral knee instability. See July 2021 Board hearing transcript. The examiner should discuss all findings in terms of the Schedule of Ratings for the Knee and Leg, to include the former and newly amended rating criteria for Diagnostic Code 5257 pertaining to recurrent subluxation or instability of the knee. A complete rationale must be provided for any opinion expressed. If any opinion cannot be provided without resorting to mere speculation, the examiner must affirm that all procurable and assembled data was fully considered and fully explain why this is the case and identify what additional evidence/information (if any) may allow for a more definitive opinion. 4. The Agency of Original Jurisdiction (AOJ) should ensure that the examiner on the VA back and knee examinations provides all information required for rating purposes, under both the former and revised rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.