Citation Nr: 21009494 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-16 798A DATE: February 22, 2021 ISSUES Entitlement to an evaluation greater than 10 percent for service-connected lumbar strain, now with degenerative changes. Entitlement to an evaluation greater than 10 percent for service-connected right knee patellofemoral syndrome. REMANDED Entitlement to an evaluation greater than 10 percent for service-connected lumbar strain, now with degenerative changes is remanded. Entitlement to an evaluation greater than 10 percent for service-connected right knee patellofemoral syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 10, 2001 to December 9, 2006, from December 10, 2006 to December 17, 2007 and from December 18, 2007 to December 17, 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran was granted service connection for his lumbar strain disability in September 2013 with a 10 percent rating assigned effective September 18, 2011. The Veteran was also granted service connection for his right knee patellofemoral syndrome in September 2013 with a 10 percent rating assigned effective September 18, 2011. The Veteran testified in a videoconference Board hearing in September 2020 before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. The Board finds that further evidentiary development is required before the claims for increased ratings on appeal can be adjudicated. 1. Entitlement to an evaluation greater than 10 percent for service-connected lumbar strain, now with degenerative changes is remanded. 2. Entitlement to an evaluation greater than 10 percent for service-connected right knee patellofemoral syndrome is remanded. The Veteran contends that his lumbar strain disability and right knee patellofemoral syndrome are more severely disabling than reflected in the currently assigned ratings. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran was last afforded VA examinations for his lumbar strain and right knee patellofemoral syndrome in May 2016. Subsequently, at the September 2020 Board hearing the Veteran testified that his service-connected disabilities have continued to worsen since his last VA examination. Specifically, as it relates to his right knee, the Veteran has testified that his knee now locks when he is at work and he now must wear a brace. He also testified that he believes that the range of motion in his knee is more limited than at the time of the May 2016 examination. As it relates to his back the Veteran testified that since the last examination, he has received injections for his back and his private physician has discussed the possibility of him needing back surgery. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, as the Veteran last underwent VA back and knee examinations in May 2016, he should be afforded new VA examinations to assess the current nature, extent and severity of his service- connected lumbar strain disability and right knee patellofemoral syndrome. Additionally, the Board notes that the record indicates there appear to be outstanding records relevant to the Veteran's claim. Specifically, at the September 2020 Board hearing the Veteran testified that he has been receiving ongoing treatment with Dr. F., who is a private neurosurgeon. It does not appear as though these records have been associated with the claims file. VA has a duty to assist the Veteran in obtaining all relevant records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This duty has not been met with regard to the outstanding records, and therefore, on remand, the RO should follow proper procedures to obtain and associate these records with the claim file. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide names, addresses and approximate dates of treatment of his service-connected lumbar strain disability and right knee patellofemoral syndrome. The Veteran should be provided the appropriate releases for VA to obtain any identified private sources of treatment. Thereafter, the AOJ should attempt to obtain outstanding records from any identified sources for which the Veteran has provided appropriate signed releases. Any records obtained should be associated with the claims file. All attempts to obtain these records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Obtain any outstanding VA treatment records regarding the Veteran's treatment for his service-connected lumbar strain disability and right knee patellofemoral syndrome. 3. After the above development is completed, schedule the Veteran for a new VA examination with a VA medical professional with expertise in orthopedics, and to determine the current nature and severity of his service- connected lumbar strain disability. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Ensure that the examiner provides all information required for rating purposes. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's back, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner(s) must ALSO name the precipitating and alleviating factors. The examiner(s) must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. The examiner must in particular render an opinion as to the current severity of any radiculopathy. The examiner should note the symptomatology attributable to any radiculopathy and comment as to whether the symptoms are best described as mild, moderate, or severe incomplete nerve paralysis or complete paralysis. The examiner should also comment on the Veteran's ability to function in an occupational or worklike setting, and describe any functional impairment caused solely by his service-connected degenerative lumbar strain disability (specifically taking into account the Veteran's neurological and orthopedic manifestations). 4. Schedule the Veteran for a new VA examination with a VA medical professional with expertise in orthopedics, and to determine the current nature and severity of his service- connected right knee patellofemoral syndrome. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Ensure that the examiner provides all information required for rating purposes. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's right knee, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner(s) must ALSO name the precipitating and alleviating factors. The examiner(s) must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. The examiner must in particular render an opinion as to the current severity of any radiculopathy. The examiner should note the symptomatology attributable to any radiculopathy and comment as to whether the symptoms are best described as mild, moderate, or severe incomplete nerve paralysis or complete paralysis. The examiner should also comment on the Veteran's ability to function in an occupational or worklike setting, and describe any functional impairment caused solely by his service-connected right knee patellofemoral syndrome (specifically taking into account the Veteran's neurological and orthopedic manifestations). The examiner should specifically comment on the Veteran's use of a knee brace and its purpose (i.e., for support, for mobility, for weight-redistribution, for instability, for pain-relief, to prevent injury, etc.). The examiner must reconcile any finding of instability with any reports of such, and with his use of a brace. The examiner should also indicate whether there are any symptom(s) or impairment associated with the knee disabilities that are not encompassed by the schedular criteria. (Continued on next page.) 5. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, Associate 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.