Citation Nr: 21016094
Decision Date: 03/19/21	Archive Date: 03/19/21

DOCKET NO. 15-45 846
DATE: March 19, 2021

REMANDED

Entitlement to a rating in excess 10 percent for left patellofemoral pain syndrome is remanded.

Entitlement to a rating in excess 10 percent for right patellofemoral pain syndrome is remanded. 

Entitlement to a rating in excess of 10 percent prior to January 23, 2015 for degenerative disc disease of the lumbar spine and in excess of 20 percent thereafter is remanded. 

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from July 1999 to July 2004.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  The Board remanded the claims for further development in March 2019.

The Veteran was last afforded a VA examination for his service-connected back and knee disabilities in July 2020.  The examiner did not provide an opinion on additional functional loss during a flare-up, indicating that the Veteran did not report any flare-ups.  However, the Board notes that the Veteran reported back and knee flare-ups during the appeal period, as documented in the January 2015 and December 2017 VA examination reports, as well as at his October 2018 Board Hearing.  Therefore, an addendum opinion adequately addressing functional impacts during flare-ups is necessary on remand.  See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).  Any outstanding treatment records should also be secured.

The matters are REMANDED for the following action:

1. Obtain all outstanding VA treatment records. 

2. Then obtain an addendum opinion from an examiner other than the January 2015 and December 2017, and July 2020 VA examiners, preferably an orthopedic physician, to determine the nature of the Veteran’s back and knee disabilities during a flare-up.  The claims file should be made available to the examiner.  No additional examination of the Veteran is necessary, unless the examiner indicates otherwise.

Following a review of the claims file, to specifically include the January 2015 and December 2017 VA examination reports, the October 2018 Board Hearing Transcript, and the Veteran’s description of flare-ups therein, the examiner should provide an opinion describing functional impairments of the Veteran’s back and bilateral knees due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion.  If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment.  The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).  Noting that the Veteran was not examined during a flare-up will not suffice.  A complete rationale shall be given for all opinions and conclusions expressed.

 

 

S. BUSH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S.S. Mahoney

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.