Citation Nr: 21007480 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-01 131 DATE: February 9, 2021 REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) and tendonitis of the right knee is remanded. Entitlement to a rating in excess of 10 percent for DJD and tendonitis of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to August 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. A transcript of the hearing is associated with the electronic claims file. The Board issued two prior remands in September 2017 and February 2020. 1. Entitlement to a rating in excess of 10 percent for DJD and tendonitis of the right knee is remanded. 2. Entitlement to a rating in excess of 10 percent for DJD and tendonitis of the left knee is remanded. In May 2009, the Veteran requested an increased rating of his service-connected bilateral knee conditions. He was given a VA examination for such in May 2009, wherein the examiner noted that the Veteran reported knee pain on a daily basis right greater than left, but that his knees do not lock on him, rather they seem unstable and he has noted swelling of the posterior aspect of the left knee. The examiner noted that the Veteran has never had surgery on his knees and reported that the Veteran did not feel his knees significantly limit him at work, but in his daily living he has curtailed his walking. The examiner also noted flareups that are unpredictable in nature and that prevent the Veteran from playing golf. On physical examination the examiner found the Veteran’s bilateral extension to be to -0 degrees pain free and his flexion to be to 140 degrees bilaterally “with mild end-of-range pain.” The Veteran’s range of motion was not additionally limited following repetitive use on exam, a minimal degree of crepitus was noted on the right knee and crepitus in the left knee was noted at full extension, finally a subtle minimal click was noted on the left knee. The Veteran was diagnosed with DJD in both knees. Based on this examination, the RO issued a May 2009 rating decision continuing to rate the Veteran’s bilateral knees at 10 percent each due to painful limited motion. In support of his claim for an increased rating, the Veteran provided a May 2009 physical therapy evaluation regarding his bilateral knees. Here his right knee flexion was found to be to 129 degrees with extension to -2 degrees and his left knee flexion was to 131 degrees and his extension to -3 degrees. Ligamentous laxity testing in both knees was negative and excellent quad control was noted in both knees. Crepitus was noted on the left knee and significant medial joint line pain was noted in the right knee. The RO issued a June 2009 rating decision continuing to rate the Veteran’s bilateral knees at 10 percent each. Following his notice of disagreement, the Veteran also submitted additional evidence in September 2012 noting a possible torn meniscus of the right knee. Thus, the Veteran was given another VA examination for his bilateral knees in October 2012. Here, the examiner again diagnosed DJD of the bilateral knees and noted that the Veteran’s “Pain in the knees is constant. Pain is made worse with walking up stairs and with weight bearing.” The examiner also noted flareups caused by cold weather. On physical examination, both the Veteran’s right and left knee flexion was to 85 degrees with no objective painful motion, and his extension was to 0 degrees with no objective painful motion. There was no additional loss of range of motion following repetitive-use testing, but tenderness or pain to palpation was noted. The examiner found no instability, subluxation, or dislocation, and found no meniscal conditions or surgical procedures for such. The examiner noted no functional impact of the Veteran’s bilateral knee DJD. In November 2012, the Veteran submitted a lay statement in support of his claim written by his coworker indicating visible increased pain of the Veteran’s bilateral knees. The Veteran also provided private treatment records from August 2012 noting bilateral knee pain, right worse than left. On physical exam the Veteran was noted to have medial joint line pain with varus appearance of the knee, but his ligaments were noted to be stable. In his appeal to the Board, the Veteran contended that his bilateral knees should be rated at 20 percent each and that his last VA examination of the bilateral knees was “inadequately performed and documented incorrectly.” The Veteran went on to note that a goniometer was not used in either his 2009 or 2012 VA examination and instead his degree of movement was based on “eye balling me moving my legs.” The Veteran reported that he was not given repetitive-use testing and was never asked at what range his pain became worse. Finally, the Veteran complained of knee instability, constant pain, crepitus, inability to sit for more than a few minutes before his knees become stiff, a meniscal condition, as well as use of a knee brace and a decreased ability to complete some portions of his job. The Veteran provided additional private treatment records dated February 2014, wherein he was noted to have some medial joint line tenderness of the right knee without any obvious effusion, instability, atrophy, apprehension, or crepitus. X-rays of the right knee revealed some obvious medial joint space narrowing, and the impression was osteoarthritis of the right knee with internal derangement. It was noted that the Veteran would like to proceed with an arthroscopy. Records from March 2014 note that the Veteran provided a copy of a right knee MRI report from April 2013 revealing a tear of the medial meniscus. The Veteran underwent an arthroscopy in March 2014. At the Veteran’s request, following surgery the RO issued a June 2014 rating decision granting a temporary evaluation of 100 percent rating for surgical of other treatment necessitating convalescence. Beginning May 1, 2014, the Veteran’s prior 10 percent rating was reinstated. In September 2017, the Board issued a remand instructing the RO to provide the Veteran with another VA examination of his bilateral knees that complied with recent caselaw. The Veteran was given another VA examination in February 2018, wherein he was diagnosed with left knee tendonitis/tendinosis, right knee meniscal tear, and bilateral knee osteoarthritis. The examiner noted no knee flareups but listed the Veteran’s functional impairment as an inability to squat or kneel. On physical exam, the examiner found the Veteran’s right knee flexion to 95 degrees and his extension to 0 degrees, and his left knee flexion to be to 100 degrees with extension to 0 degrees. Pain was noted on exam, but it did not cause functional loss. No additional range of motion loss was found following repetitive-use testing. No ankylosis, recurrent subluxation, lateral instability, or recurrent effusion was noted on either knee. All joint stability testing was normal. A meniscal condition was noted as meniscal tear and frequent episodes of joint pain on the right side and frequent episodes of joint pain on the left side. In explanation of these findings the examiner wrote “He has pain and decreased range of motion of both knees. He had an MRI of he [sic] knees in 2013 that showed a right medial meniscus tear.” Finally, with regard to functional impairment the examiner again noted that the Veteran was unable to squat or kneel and had pain with walking. The Veteran submitted private treatment records of an MRI completed in October 2017 showing a small free edge tear of the posterior horn of the lateral meniscus of the right knee and degenerative fibrillation of the free edge of the posterior horn of the medial meniscus, as well as the free edge of the body of the lateral meniscus of the left knee, among other things. In October 2018, the Veteran submitted additional correspondence arguing that his most recent VA examination of the bilateral knees was inadequate, noting specifically that he should be awarded a rating under DC 5258 due to his right knee meniscal tear and that his knee flare-ups were not considered. The Board issued another remand in February 2020, instructing the RO to provide the Veteran with another VA examination for his bilateral knees wherein the examiner should address the Veteran’s reported knee flare-ups and October 2018 correspondence. The Veteran was given another VA examination for his bilateral knees in February 2020. Here, the examiner diagnosed bilateral knee tenonitis/tendinosis and bilateral degenerative arthritis. The Veteran reported flare-ups during walking and standing stating “I cannot golf anymore, I cannot do yard work anymore.” On physical examination, the Veteran’s right knee flexion was to 70 degrees and his extension to 0 degrees with pain noted on exam that causes functional loss. The flexion of his left knee was found to be to 100 degrees with extension to 0 degrees, also with pain on exam that causes functional loss. Evidence of pain on weight bearing was noted, but no crepitus. With regard to repetitive-use testing of the bilateral knees, the examiner noted that the Veteran was “too tender to complete” but that his range of motion was not expected to change, rather there would be more pain, weakness, fatigue, lack of endurance, and incoordination likely to occur. With regard to flareups, the examiner also opined that the bilateral range of motion was not expected to change during flareups, but that more pain, weakness, fatigue, lack of endurance, and incoordination was likely to occur. The examiner noted no ankylosis, and no history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner found no meniscal conditions and listed the functional impact of the Veteran’s bilateral knee conditions as “recurrent pain and discomfort from bilateral knees reduces functional capacity and this will negatively impact ability to work.” With regard to the Veteran’s contentions, the examiner wrote “The Veteran’s exam of 2/27/2018, 2017 and his statements of support from 2018 by LLP and CBH were reviewed. He does have flare with repetitive use or even any use of his knees. It is obvious from review of these documents that the Veteran has always had flare up with use, such as walking, squatting and other activities of daily living as indicated by coworker LLP in her statements as with spouse CBH. Recent bilateral knee x-rays of 02/21/2020 document bilateral degenerative arthritis of the knees which confirm a deterioration of the knees involved.” The Board finds this examination to be inadequate to the extent that the Veteran’s October 2018 statement wherein he specifically discusses his torn meniscus of the right knee diagnosed in 2017 was not at all addressed. The Board notes that the Veteran also provided private MRI results in support of such that were not discussed. Moreover, the examiner noted pain on examination that causes functional loss but did not provide a degree at which pain began pursuant to DeLuca. Therefore, the Board finds that another remand is warranted. The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records and private treatment records. 2. Schedule the Veteran for another examination to evaluate the severity of his DJD and tendonitis of the bilateral knees. The claims folder must be made available to, and be reviewed by, the examiner. The examiner should make a note in his or her report that the Veteran’s entire claims file, including this remand which provides a full summary of the Veteran’s examinations and treatment records, has been reviewed. All indicated studies, including x-rays, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, AND at what degree of motion he demonstrates such objective evidence (e.g., 0 to 130 degrees with pain at 115 degrees) to comply with DeLuca. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. If the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The examiner should also specifically consider and address the Veteran’s October 2018 correspondence regarding his bilateral knees and meniscal conditions, as well as the Veteran’s October 2017 MRI results and March 2014 treatment records discussing an arthroscopy procedure, and his February 2018 QTC questionnaire answers regarding his bilateral knees. The examiner should also address whether the Veteran’s meniscal conditions are a worsening of his currently service connected bilateral DJD and tendonitis of the knees and any symptoms caused by such. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate Attorney 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.