Citation Nr: 21025979 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-18 310 DATE: April 29, 2021 REMANDED Entitlement to an increased rating higher than 10 percent for right knee patellofemoral pain syndrome with degenerative arthritis (right knee disability) is remanded. Entitlement to an increased rating higher than 30 percent for left knee patellofemoral pain syndrome (left knee disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1998 to July 2002. These matters initially came to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which, inter alia, granted an increased rating for both left and right knee patellofemoral pain syndrome, evaluating each as 10 percent disabling, and denied service connection for tinnitus. New and material evidence was received within a year of the July 2015 rating decision and the claims were readjudicated in a November 2015 rating decision wherein the RO, among other things, continued its denial of the claim for service connection for tinnitus, and continued a 10 percent rating for both right and left knee disabilities. In May 2016, the Veteran filed his notice of disagreement, and in September 2018 was issued a statement of the case and perfected his appeal to the Board. In a September 2018 rating decision, the RO granted a rating increase for the Veteran’s left knee disability, evaluating it as 30 percent disabling. As this constitutes a partial grant of the benefits sought on appeal, this issue remains on appeal before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In November 2019, the Board remanded the Veteran’s claims for service connection for tinnitus, and higher ratings for left and right knee disabilities for a new medical opinion and VA examinations. In September 2020, the RO granted service connection for tinnitus, evaluating it as 10 percent disabling. Thus, this issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). The Board notes that a separate appeal stream for entitlement to an increased rating for left foot plantar fasciitis, currently evaluated as 20 percent disabling, is currently pending. However, this issue will be addressed in a separate Board decision as the Veteran has yet to be afforded a Board hearing before a Veterans Law Judge as requested in his December 2019 Form 9. Entitlement to Increased Ratings for Right and Left Knee Disabilities The Veteran’s left knee disability is currently rated 30 percent disabling under DC 5003-5261, and his right knee disability is rated 10 percent disabling under DC 5003-5260. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. June 2015 post-service treatment records indicate that the Veteran reported moderate to severe knee pain, which he described as an 8 out of 10, with 10 being the worst. He described the pain as a dull aching and sharp, aggravated by prolonged sitting and relieved by stretching. A June 2015 disability benefits questionnaire (DBQ) reflects that the Veteran reported that his pain is a 9 out of 10 at times, and that he is unable to walk up and down stairs without assistance. He stated that the pain is constant, but changes in intensity. He reported that the longer he sits, the worse the pain. He did not report flare-ups, but stated that his pain was worse at night. Right knee flexion was to 140 degrees and extension was to 0 degrees. Pain was exhibited with both flexion and extension, and while there was evidence of crepitus, there was no evidence of pain with weight bearing. Left knee flexion was to 140 degrees, and extension was to 20 degrees. Pain was again noted with both flexion and extension, and there was objective evidence of crepitus, but no evidence of pain with weight bearing. There was no change in range of motion with repetitive use testing, and the examiner noted that she was unable to say without mere speculation that pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over a period of time for either knee. There was no reduction in muscle strength or muscle atrophy noted, and no ankylosis of either knee. The DBQ indicated that there was no history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner noted that the Veteran attempted to complete joint stability testing, but it caused too much pain. The DBQ reflected that the Veteran did not have a meniscus condition, and did not use any assistive devices as a normal mode of locomotion. The examiner noted that the Veteran’s knee disabilities impacted his ability to work, as the Veteran is unable to sit and stand for more than 2 to 3 hours at a time, and lost 2 to 4 weeks each year of work time. March 2016 medical treatment records reflect that the Veteran does not appear to show any gross instability on knee examination, and that he has full range of motion in both knees with normal flexion and extension. The Veteran complained of some pain with squatting. An October 2018 DBQ reflects that the Veteran reported that his right and left knee disabilities have worsened. He stated that his knees “lock up sometimes”, with throbbing pain and swelling. He reported flare-ups of both knees, and stated that the has difficulty with prolonged walking, standing, and sitting. Right knee flexion was to 100 degrees, and extension to 0 degrees, but no pain was noted upon examination. There was no objective evidence of crepitus, but there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue with the Veteran reporting mild tenderness on lateral patella. Left knee flexion was to 105 degrees, and extension was to 0 degrees. The Veteran reported mild tenderness on lateral patella, but there was objective evidence of crepitus in the left knee. There was no additional functional loss with repetitive use testing. The examiner noted that the examination was not administered during a flare-up, and indicated that he was unable to objectively quantify the functional loss in range of motion during a flare-up without resorting to speculation. There was no muscle atrophy, muscle strength was normal, and there was no ankylosis noted. The DBQ reflected no history of recurrent subluxation, lateral instability, or recurrent effusion. There was no joint instability noted on either knee, and the Veteran did not have, and had never had any tibial or fibular impairment, or meniscus condition. There was no evidence of pain on passive range of motion testing on non-weight bearing testing of either knee. The Veteran did not report use of any assistive device, but the examiner noted that the Veteran’s knee disabilities impacted his ability to work as the Veteran would have difficulty with prolonged walking, sitting, and standing. A September 2020 DBQ reflects that the Veteran complained of swelling, tenderness, and pain in his knees, but did not report flare-ups, functional loss, or functional impairment. Right knee flexion was to 130 degrees, and extension to 0 degrees. There was no pain noted upon examination, and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Left knee flexion was to 130 degrees, and extension to 0 degrees. Pain was noted on examination, but it did not result in or cause functional loss, and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional functional loss or range of motion with repetitive use testing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal, there was no muscle atrophy, and no ankylosis. The DBQ indicated that there was no history of recurrent subluxation, lateral instability, or recurrent effusion, there was no joint instability, and the Veteran did not have any tibial or fibular impairment, or meniscus condition. The Veteran did not report use of any assistive devices, and the examiner noted that the Veteran’s disabilities did not impact his ability to perform any type of occupational task. There was no objective evidence of pain with non-weight bearing, or on passive range of motion testing on either knee. The Board notes that in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. While the June 2015 and September 2020 examiners noted that the Veteran did not suffer from flare-ups, the Veteran reported flare-ups in his October 2018 DBQ, and has consistently indicated that while his knee pain is constant, it is worse at night, and with standing, or sitting. Therefore, the evidence of record reflects that the Veteran suffers from flare-ups in both knees. As no examiner in this case attempted to estimate additional loss of motion during flare-ups or explain why an estimate cannot be given, a remand for a new VA examination is warranted to determine the present level of disability, to include consideration of flare-ups as indicated in Sharp. The matters are REMANDED for the following action: Schedule the Veteran for an examination, via telehealth if feasible, to determine the current severity of his right and left knee disabilities. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right knee disability, and left knee disability alone, and discuss their effects on any occupational functioning and activities of daily living. 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). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.