Citation Nr: 21007808 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 180828-101 DATE: February 10, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for left patellofemoral syndrome is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from November 2004 to January 2013. A rating decision was issued under the legacy system in February 2015. In February 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review option. The agency of original jurisdiction (AOJ) issued an AMA rating decision pursuant to RAMP in August 2018, which is the decision on appeal. In August 2018, the Veteran submitted a VA Form 21-4138, RAMP Selection, and he elected the Hearing option. Although the Veteran also marked in this form that was seeking higher-level review, the Board of Veterans’ Appeals (Board) notes that he was unable to request a higher-level review of the August 2018 rating decision that had already considered his claim under the higher-level review option. See 38 C.F.R. § 3.2500(c)(2). Therefore, the Board may only consider the evidence of record at the time of the February 2018 RAMP opt-in as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The record shows that the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2019. A transcript from that proceeding is associated with the claims file. In a September 2019 decision, the Board granted entitlement to an earlier effective date of January 2, 2013 for the grant of service connection for left patellofemoral syndrome as well as for the grant of service connection for sleep apnea. The Board also awarded an initial 10 percent rating, but no higher, for the Veteran’s left patellofemoral syndrome. The Veteran appealed the Board’s determination regarding his initial increased rating claim to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court vacated the portion of the Board's decision that denied entitlement to a rating in excess of 10 percent for left patellofemoral syndrome and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the Veteran’s increased rating claim for his left knee disability for further development, this additional evidence will be considered by the Regional Office (RO) in the adjudication of this claim. 1. Entitlement to an initial disability rating in excess of 10 percent for left patellofemoral syndrome is remanded. In the Joint Motion, the parties agreed that the Board provided an inadequate statement of reasons or bases regarding its determination that separate and/or higher ratings were not warranted under other diagnostic codes, including Diagnostic Codes 5258 or 5259 that evaluate dislocation of the semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint; or removal of the semilunar cartilage, symptomatic respectively. See 38 C.F.R. § 4.71a. The Court highlighted the fact that the Veteran received a diagnosis of internal derangement of the left knee medial meniscus during service in 2007. In this regard, the Board notes that service treatment records (STRs) received in June 2015 include an April 2007 entry regarding a follow-up for the left knee that noted an assessment of internal derangement of knee medial meniscus. The record also shows that the Veteran was last provided with a VA examination to evaluate his left knee disability in November 2014. In the examination report, however, the examiner marked that the Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. In light of this discrepancy between the November 2014 VA examiner’s finding and the April 2007 assessment indicating that a meniscal condition was present, the Board finds that the available medical evidence was insufficient to rate the Veteran’s left knee disability, and that the AOJ should have obtained an additional VA examination to address this conflicting evidence. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). As such a remand is warranted to correct this pre-decisional duty to assist error. The matters are REMANDED for the following action: Provide the Veteran with a VA examination in connection with his initial increased rating claim for left patellofemoral syndrome. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disability. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the left patellofemoral syndrome under the rating criteria. In particular, the examiner should provide the range of motion in degrees and test the range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) nonweight-bearing. This testing must be conducted for both the joint in question and any paired joint. 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 this is so. The examiner should also indicate whether there whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion to the joint; or, symptomatic removal of semilunar cartilage. If a meniscal condition is not found, the examiner should address the April 2007 service treatment record regarding a follow-up for the left knee that noted an assessment of internal derangement of knee medial meniscus. The examiner should additionally address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The examiner should further state whether there is any malunion or nonunion of the tibia and fibula. The examiner is also asked to evaluate any scars associated with the Veteran's left patellofemoral syndrome. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including limitation of motion) due to these factors. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffers during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he or she could not do so. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.