Citation Nr: 21011279 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 10-49 356 DATE: March 1, 2021 REMANDED Entitlement to higher disability evaluations for patellofemoral syndrome of the left knee, rated as 20 percent prior to December 1, 2020, and as noncompensable since December 1, 2020, is remanded. Entitlement to higher disability evaluations for patellofemoral syndrome of the right knee, rated as 20 percent prior to December 1, 2020, and as noncompensable since December 1, 2020, is remanded. Entitlement to higher disability evaluations for right knee extension, rated as 10 percent prior to December 1, 2020, and as noncompensable since December 1, 2020, is remanded. Entitlement to higher disability evaluations for left knee extension, rated as 10 percent prior to December 1, 2020, and as noncompensable since December 1, 2020, is remanded. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from February 1987 to October 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the April 2010 Rating Decision on appeal granted a 20 percent evaluation for patellofemoral syndrome of the left knee and a 20 percent evaluation for patellofemoral syndrome of the right knee, each effective December 9, 2009, the date the increased rating claim for these disabilities was received by VA. Thereafter, a June 2018 Rating Decision granted additional separate 10 percent ratings for left knee extension and right knee extension, each effective June 1, 2018, which are part and parcel of the right and left knee ratings on appeal. In an October 2018 decision, the Board remanded these claims in order to obtain an addendum opinion from an appropriate clinician regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups with respect to the Veteran’s left and right knee disabilities. Pursuant to the Board’s Remand, the Veteran was provided with a VA Knee and Lower Leg Conditions examination in July 2019. Based on the results of this examination, in a July 2020 Rating Decision, the RO proposed reducing the disability evaluations for the Veteran’s service-connected patellofemoral syndrome of the left knee, patellofemoral syndrome of the right knee, right knee extension, and left knee extension to noncompensable. This was effectuated in a September 2020 Rating Decision, at which time the RO decreased all of the Veteran’s knee ratings to noncompensable effective December 1, 2020. In response to this September 2020 Rating Decision, the Veteran filed a VA Form 20-0995, Decision Review Request: Supplemental Claim, in December 2020. Significantly, the Veteran indicated that he was not opting in from a Statement of the Case or Supplemental Statement of the Case; rather, he indicated that he was only objecting narrowly to the reduction of his various service-connected knee disability evaluations effectuated in the September 2020 Rating Decision, issued after the February 19, 2019, implementation of the AMA. As such, the issues related to the propriety of the various rating reductions effectuated in the September 2020 Rating Decision will not be addressed in the current decision; rather, they will be developed and adjudicated in accordance with the AMA. Meanwhile, with respect to the increased evaluation and TDIU issues remanded by the Board in October 2018, they were readjudicated in an October 2020 Supplemental Statement of the Case and recertified to the Board in November 2020. Crucially, with respect to these claims, the Veteran has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP). Additionally, although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal with respect to these claims was issued prior to that date. Accordingly, the Board will review the current appeal, which does not directly address the propriety of the rating reductions effectuated by the RO in its September 2020 Rating Decision, under the existing Legacy Appeals System. The Board also notes that the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in August 2016. In correspondence dated in November 2020, the Veteran was notified that the VLJ who conducted his August 2016 hearing was no longer employed by the Board, and he was given the opportunity to request an additional Board hearing before another VLJ. However, as the Veteran did not respond within 30 days from the date of the August 2016 correspondence, the Board assumes that he did not want another hearing and will proceed accordingly based on the August 2016 hearing transcript already of record. The Veteran seeks entitlement to higher disability evaluations for his service-connected patellofemoral syndrome of the left knee, patellofemoral syndrome of the right knee, right knee extension, and left knee extension, as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. As mentioned above, in its October 2018 decision, the Board remanded these claims in order to obtain an addendum opinion from an appropriate clinician regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups with respect to the Veteran’s left and right knee disabilities. Pursuant to the Board Remand instructions, the Veteran was provided with VA Knee and Lower Leg Conditions examination in July 2019, approximately two years ago. At that time, the most recent X-rays of record were obtained in October 2017, and showed mild osteoarthritis of left knee and mild medial compartmental joint space narrowing unchanged compared to previous X-rays dated in August 2016. At the conclusion of the examination, the VA examiner offered that, “The conditions of right knee joint osteoarthritis and right knee meniscus tear are separate and distinct condition from Veteran's service-connected condition of patellofemoral pain syndrome of the right knee. The condition of right knee joint osteoarthritis and right knee meniscus tear are not part of the expected disease progression of Veteran's service-connected condition of patellofemoral pain syndrome of the right knee. The condition of left knee joint osteoarthritis is a separate and distinct condition from Veteran's service-connected condition of patellofemoral pain syndrome of the left knee. The condition of left knee joint osteoarthritis is not part of the expected disease progression of Veteran's service-connected condition of patellofemoral pain syndrome of the left knee.” No additional comment or rationale was offered. Based on this July 2019 VA opinion, the RO, in a September 2020 Rating Decision, decreased the disability evaluations for patellofemoral syndrome of the left knee, patellofemoral syndrome of the right knee, right knee extension, and left knee extension to noncompensable effective December 1, 2020, under the theory that these symptoms were due to the Veteran’s nonservice-connected osteoarthritis and meniscus tear rather than due to his service-connected patellofemoral syndrome. The claims on appeal were most recently readjudicated in an October 2020 Supplemental Statement of the Case, at which time the RO indicated that it had reviewed VA treatment records dated until October 6, 2020. However, VA treatment records associated with the claims file after the October 2020 Supplemental Statement of the Case suggest that there are additional outstanding VA treatment records relevant to the Veteran’s increased rating claims, that his bilateral knee symptomatology worsened since the July 2019 VA examination, and that his patellofemoral syndrome caused or aggravated his diagnosed knee osteoarthritis. Specifically, an October 2020 VA Physical Medicine Rehabilitation Attending Note indicated that, “His symptoms of patello femoral syndrome date back to his military service as noted in the HPI. Note that authors in the literature say that patello femoral syndrome can lead to osteoarthritis of the knees.” This note also indicated that, “Overall his symptoms of pain and dysfunction are worsening. Imaging clearly shows progression of his abnormalities.” Additionally, a December 2020 VA Radiology Note indicated that, “The Veteran had orders to get Knee x-rays taken with a desired date of Sep 25, 2020. The order was discontinued due to being an outdated request. If the exam is still clinically indicated, please reorder and contact the Veteran to inform them.” Similarly, a January 2021 note from the Veteran’s Physical Medicine and Rehabilitation (PM&R) attending physician at the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia, indicated that, “I talked to the patient I will see him in clinic. He needs rom [range of motion] of his lower extremities.” More significantly, a VA “Exam Scheduling Request” associated with the claims file in January 2021 indicated that the RO ordered a new VA examination to assess the severity of the Veteran’s service-connected patellofemoral syndrome of the left knee, patellofemoral syndrome of the right knee, right knee extension, and left knee extension. However, this recently requested knee examination has not yet been associated with the claims file, and the record does not specify the scheduled date for this examination. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (b) (West 2014); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Here, as there is evidence of outstanding VA medical records directly relevant to the claims addressed herein which have not yet been associated with the claims file, the Board finds that the RO must associate with the record any and all outstanding VA treatment records dated from January 2021 to the present, to include the report of the VA knee examination requested by the RO in January 2021. Additionally, the Board finds that an additional VA medical opinion is needed in order to properly assess the severity of the Veteran’s service-connected knee symptomatology. In the July 2019 VA Knee and Lower Leg Conditions examination conducted pursuant to the Board’s prior Remand instructions, the VA examiner opined that the Veteran’s knee joint osteoarthritis and meniscus tear were separate and distinct conditions from his service-connected patellofemoral pain syndrome of the right knee and left knee, and that the osteoarthritis and meniscus tear were not part of the expected disease progression of Veteran’s service-connected condition of patellofemoral pain syndrome. However, this VA examiner failed to offer an opinion as to whether the Veteran’s knee joint osteoarthritis and meniscus tear were either caused or aggravated by his service-connected patellofemoral pain syndrome of the right knee and left knee. Although a VA physician in October 2020 indicated that medical authors concluded that patellofemoral syndrome can lead to osteoarthritis of the knees, this statement was too speculative and not specific to the Veteran, and therefore insufficient to establish a causal relationship between his service-connected patellofemoral syndrome and any additional knee symptomatology. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a causal relationship). As such, on remand, an addendum opinion should be obtained which addresses the likelihood that the Veteran’s diagnosed osteoarthritis and/or meniscus tear were caused and/or aggravated by his service-connected patellofemoral syndrome of the right knee and left knee. The Board also acknowledges that a Supplemental Statement of the Case adjudicating the issues on appeal was most recently issued on October 07, 2020, and that since that time many new VA treatment records directly relevant to the issues on appeal were added to the claims file. Significantly, this new and relevant evidence, added to the record since the most recent Supplemental Statement of the Case, was not reviewed by the Agency of Original Jurisdiction (AOJ). Although initial AOJ review is automatically waived for evidence submitted by the Veteran or his representative when the VA Form 9 is received after February 2, 2013, the Veteran’s VA Form 9 here was received in December 2010. Moreover, the automatic waiver does not apply to VA-generated evidence, such as VA examination reports or VA treatment records not submitted by the Veteran. 38 U.S.C. § 7105(e) (West 2014). Waiver of a Supplemental Statement of the Case is only applicable to evidence submitted by the Veteran or his representative. See 38 C.F.R. § 20.1304. However, the claims on appeal are being remanded for additional development and will necessarily be readjudicated by the AOJ before returning to the Board; as such, all newly received evidence will have been reviewed by the AOJ prior to future adjudication by the Board. Finally, with respect to the Veteran's claim of entitlement to a TDIU, the Board finds that the claims for increased evaluations and the claim of entitlement to a TDIU are inextricably intertwined. All matters that are "inextricably intertwined" with the issue certified for appeal must be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). The claims of entitlement to increased evaluations and the claim of entitlement to TDIU are "intertwined" because a decision on the increased evaluation claims will impact the claim for a TDIU. Consequently, the claims of entitlement to increased evaluations and the claim of entitlement to a TDIU must be remanded for contemporaneous adjudication. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from January 2021 to the present from the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia, and all associated outpatient clinics, to include the report of the VA knee examination requested by the RO in January 2021. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. After all outstanding VA treatment records have been associated with the claims file, request a VA addendum opinion from the examiner who authored the July 2019 VA Knee and Lower Leg Conditions examination report. If the July 2019 examiner is not available, then request the VA addendum opinion from a suitable substitute. Provide a copy of this remand and the claims file to the examiner for review. If deemed necessary by the examiner in order to provide the requested opinion, the Veteran should be scheduled for an in-person examination. All necessary tests and studies should be conducted. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed bilateral knee joint osteoarthritis and/or right knee meniscus tear were caused or aggravated by his service-connected patellofemoral syndrome of the left knee and/or patellofemoral syndrome of the right knee. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran’s bilateral knee joint osteoarthritis and/or right knee meniscus tear have been permanently aggravated/worsened by his service-connected knee conditions, then the degree of worsening should be identified. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. In providing these opinions, the examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record, to include the October 2020 VA Physical Medicine and Rehabilitation Attending Note which indicated that “that authors in the literature say that patello femoral syndrome can lead to osteoarthritis of the knees.” 3. Thereafter, after undertaking any other development deemed appropriate, readjudicate the issues on appeal with consideration of all evidence of record, to include all evidence associated with the claims file since the October 2020 Supplemental Statement of the Case. If any benefit sought is not granted, then furnish the Veteran and his representative with another Supplemental Statement of the Case and afford them an opportunity to respond before the record is returned to the Board for further review. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.