Citation Nr: 21014607 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 19-00 904 DATE: March 15, 2021 REMANDED Entitlement to a compensable disability rating for right knee retropatellar pain syndrome is remanded. Entitlement to a compensable disability rating for left knee retropatellar pain syndrome is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Army from August 2005 to July 2012 with service in Iraq. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2019 decision, the Board denied compensable disability ratings for right knee retropatellar pain syndrome and left knee retropatellar pain syndrome. For both disabilities, the Board found that the Veteran’s symptoms were attributable to arthritis, unrelated to either left or right retropatellar pain syndrome. The Veteran appealed the October 2019 Board decision to the United States Court of Appeals for Veteran’s Claims (Court). A July 2020 Court order vacated the Board’s October 2019 decision and remanded the appeal for compliance with the directions in a Joint Motion for Remand (JMR). The parties to the JMR agreed that the Board erred when it failed to ensure that VA complied with its duty to assist under the requirements of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) by obtaining an adequate medical opinion that took into consideration the Veteran’s lay statements concerning instability and falling and whether the Veteran’s symptoms of pain could be connected to his right knee retropatellar pain syndrome and right knee retropatellar pain syndrome. Noting that these two disabilities are rated under 38 C.F.R. § 4.71(a), Diagnostic Code 5257, the parties noted that there is nothing in this Diagnostic Code, which pertains to subluxation and lateral instability, that requires that objective medical evidence is necessary or is favored over lay evidence. See English v. Wilkie, 30 Vet. App, 347, 352 (2018). The parties concurred that the clinician who conducted the last VA examination of the Veteran’s knees in March 2018 diminished the probative value of the Veteran’s lay accounts of “falls related to his knees” and knees giving way due to an absence of documentation. The clinician failed to recognize or appreciate that the Veteran’s condition—regardless of pain—was symptomatic because the Veteran’s knees were unstable. See id. The parties directed the Board to remand these matters for a new adequate examination report that contemplates the factors noted herein. The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are any private treatment records outstanding for the Veteran’s left and/or right retropatellar pain syndrome. If so identified, prepare releases, obtain the records, and associate them with the Veteran’s claims file. 2. Obtain outstanding relevant VA treatment records and associate them with the claim file. 3. Schedule the Veteran for a VA knees examination with an appropriate clinician. The claims file should be made available to and reviewed by the clinician and all necessary tests should be performed. All examination findings should be reported in detail. The clinician must address the following: a. Describe the current nature and severity of the Veteran’s left and right retropatellar pain syndrome, including any and all diagnoses pertaining to both knees. b. Assess both active and passive range of motion, as well as range of motion on weight-bearing and non-weight bearing. If possible, estimate range of motion, to include after repetitive use and during flare ups in terms of degrees based upon observations in the examination and the Veteran’s lay reports of symptoms. c. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). The clinician must address the Veteran’s lay statements about “falls related to his knees” and knees giving way. And, the clinician must address whether the Veteran’s symptoms of pain have any positive association with his left knee retropatellar pain syndrome and his right knee retropatellar pain syndrome. d. Discuss the functional limitations, if any, of the Veteran’s left and right retropatellar pain syndrome with consideration of the Veteran’s lay statements. The clinician must provide a rationale for each conclusion reached. The Board notes that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, she/he must provide an explanation for such rejection. 4. Upon completion of all of the above-directed development and any other development deemed necessary, the RO should readjudicate the Veteran’s claims. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.