Citation Nr: 21015822 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-27 597 DATE: March 18, 2021 REMANDED Entitlement to an increased rating greater than 10 percent for left knee chondromalacia is remanded. Entitlement to an initial increased rating greater than 10 percent for left knee instability is remanded. Entitlement to an increased rating greater than 10 percent for right knee chondromalacia is remanded. Entitlement to an initial increased rating greater than 10 percent for right knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1992 to October 1996. He appealed a March 2012 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). A Board of Veterans’ Appeals (Board) hearing was held in October 2018. A transcript is of record. In May 2019, subsequent to the Veteran’s testimony at the Board hearing, the Board remanded the appeal to obtain an adequate examination to assess the severity of the Veteran’s knee conditions. The claims are now back before the Board. The Veteran has received two VA knee examinations since the May 2019 Board remand. In December 2019, a VA examiner noted the Veteran’s knee condition has “stayed the same” since its onset and stated the Veteran did not report flare-ups or functional impairment in either knee. This is contrary to the evidence of record, where the Veteran regularly states his bilateral knee pain is worse and includes flare-ups and functional loss. See, e.g.¸ November 2011 VA examination report (flare ups); November 2013 VA treatment records (knee pain is worse); November 2015 VA treatment records (“getting worse”); October 2018 Board hearing transcript at 13 (worse), 20 (flare-ups). The Board finds the December 2019 VA examination inadequate for VA rating purposes as the examiner clearly did not consider the Veteran’s lay testimony or evidence of record. In November 2020, a VA examiner provided a more detailed, comprehensive examination report, yet the Board also finds this VA examination inadequate for VA rating purposes. The Veteran reported to suffer from bilateral knee flare-ups “3 to 4 times a week” that rendered him unable “to bend [and] pick up items off the floor.” See November 2020 VA examination report. At the examination, the Veteran’s knees were not flaring-up or tested after repeated use. Id. After testing, the VA examiner concluded the Veteran’s left and right knees both had symptoms of pain, fatigue, and weakness that “significantly limited functional ability” with repeated use over time and during flare-ups. Id. The examiner noted this functional impairment included “restricted range of motion,” and the inability “to bend [and] pick up any items from the floor, walk too far, or run.” Id. Despite these statements of restricted motion and significantly limited functional ability during flare-ups and with repeated use over time, the VA examiner noted no change in the Veteran’s range of motion during said flare-ups and repeated use. Due to the internally inconsistent examination report and the lay evidence of record that suggests decreased motion during flare-ups, a remand is required to properly address and estimate the functional loss and decreased motion the Veteran experiences during flare-ups and with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). Additionally, the record appears to be incomplete. At the October 2018 Board hearing, the Veteran testified he received physical therapy, in part, for his knees through a VA contractor from November 2017 to January 2018. See October 2018 Board hearing transcript at 16, 22. An April 2018 VA treatment record reflects a “Choice first Care consult had been completed for rehabilitation and physical therapy” and to “see scanned document for [the] report,” but there is no scanned document on file for this consultation. Further, the record reflects the Veteran received physical therapy at Select Physical Therapy in Clayton, North Carolina but the actual records from his physical therapy sessions are not on file. See, e.g., September and November 2017 VA treatment records (“place of service: Select Physical Therapy- Clayton”). VA’s duty to assist includes assisting the claimant in the procurement of relevant medical records, especially VA medical records. See 38 C.F.R. § 3.159(c). On remand, the AOJ should make efforts to obtain these records. The matters are REMANDED for the following action: 1. Obtain all relevant updated private and VA treatment records that have not already been associated with the claims file, including, but not necessarily limited to, (a). the “scanned” report from the Veteran’s December 2017 physical therapy consultation noted in April 2018 VA treatment records, (b). the Veteran’s VA physical therapy records, contracted out with Select Physical Therapy-Clayton, from approximately September 2017 to January 2018. If any identified records are not obtainable, or none exist, the Veteran and his representative should be notified, and the record clearly documented. 2. After the development in #1 above is complete, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected left and right knee chondromalacia. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, precipitating and alleviating factors, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repetitive use over time. If the VA examiner finds pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups and/or with repetitive use over time, but this decrease in functional ability results in no loss of range of motion, please detail how the Veteran’s functional ability is significantly limited during a flare-up and with repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due solely to his left and right knee chondromalacia and discuss the effect of each on any occupational functioning. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner 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 examiner (does not have the knowledge or training). The examiner should consider that the Veteran is competent to report his right and left knee symptoms and such reports must be specifically acknowledged and considered in formulating any opinions. Further, the examiner must discuss any of the Veteran’s assertions on flare-ups. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. 3. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.