Citation Nr: 21073066 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 11-31 356 DATE: December 7, 2021 REMANDED Initial increased rating for left knee patellofemoral pain syndrome, currently rated 10 percent disabling, is remanded. For the period prior to July 17, 2015, entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. REASONS FOR REMAND Left knee Service connection is in effect for left knee patellofemoral pain syndrome, rated 10 percent disabling pursuant to 38 C.F.R. § 4.71A, Diagnostic Code 5260. As detailed in the May 2021 Board of Veterans' Appeals (Board) Remand, in December 2019, the Veteran underwent a C&P examination to assess the severity of his left knee disability. The examiner diagnosed knee strain, shin splints, and patellofemoral pain syndrome. The examiner reported flexion from 5 to 115 degrees and extension 115 to 5 degrees. The examiner checked the 'Slight' box with regard to lateral instability but then checked the 'No' box for joint instability. With regard to shin splints, the examiner stated that he has pain when on his feet on hard surfaces. In a November 2020 addendum opinion, the examiner stated that with regard to stability, the Veteran complained of muscle spasms and knee instability with chronic pain that occurs with mild exercise or while climbing up and down stairs. He was not exercising or climbing stairs during the examination. There was left knee crepitus noted. The instability was related to the limited range of motion and stiffness of the knee, not laxity of the joint. The Veteran is not able to compensate when walking on unstable or unlevel surfaces which places him at risk for falls. Effective February 7, 2021, the criteria for Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5257 (recurrent subluxation or lateral instability) were revised. In light of the diagnoses and objective findings contained in the December 2019 C&P examination and the revised criteria, the May 2021 Board remanded the claim to afford the Veteran an examination to assess the severity of his left knee disability. In September 2021, the Veteran underwent an examination with a nurse practitioner, not a physician as instructed in the Board Remand. Moreover, the examiner did not address the prior diagnosis of shin splints; the examiner checked the 'No' box with regard to whether the Veteran has ever been diagnosed with recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, or any other tibial or fibular impairment. The examiner indicated that the Veteran uses crutches but did not comment on whether the Veteran has a prescription from a medical provider for a brace, cane, or walker due to recurrent instability. Finally, while the Veteran reported flare-ups associated with his left knee, the examiner did not indicate whether the Veteran would suffer from any functional loss during flare-ups in compliance with Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). TDIU For the period prior to July 17, 2015, entitlement to a TDIU is inextricably intertwined with the left knee issue being remanded. Harris v. Derwinski, 1Vet. App.180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an orthopedic examination with a physician with appropriate expertise to assess the severity of his left knee disability. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the left knee should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight 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. The examiner should perform stability testing, report whether there is instability or subluxation, and express an opinion as to the severity of such instability or subluxation. The examiner should comment on whether the Veteran has a prescription from a medical provider for a brace, cane, or walker due to recurrent instability. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. The examiner should comment on the period of time he has required treatment, to include whether it is less than or more than 12 consecutive months, and whether the shin splint disabilities have been unresponsive to either shoe orthotics or other conservative treatment, and whether the shin splint disabilities have been unresponsive to surgery. The examiner should comment on whether there is nonunion of the tibia and fibula, with loose motion, requiring a brace. The examiner should comment on the symptomatology associated with his left knee disability. The examiner is to provide a statement concerning how the left knee disability affects his functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations he would experience as a result of his left knee disability. (Continued on the next page) The examiner must provide a comprehensive rationale for the opinions. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.