Citation Nr: 21030163 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-65 939 DATE: May 18, 2021 REMANDED Entitlement to service connection for right knee chondromalacia, to include as secondary to a chronic right knee strain is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to a chronic right knee strain is remanded. Entitlement to a rating in excess of 80 percent for a kidney disability is remanded. Entitlement to a rating in excess of 10 percent for a chronic right knee strain is remanded. Entitlement to a rating in excess of 30 percent for hyperparathyroidism with kidney stones is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2001 to May 2004. In October 2020, the Veteran testified before the undersigned in a videoconference hearing. A copy of the hearing transcript has been associated with the claims file. 1. Entitlement to service connection for right knee chondromalacia, to include as secondary to a chronic right knee strain is remanded. The Veteran contends that service connection for right knee chondromalacia, to include as secondary to her service-connected right knee disability (characterized as a right knee strain) is warranted. In a June 2017 VA examination, the examiner noted a diagnosis of right knee osteoarthritis. At the time of the examination, the Veteran reported that she injured her right knee in 2002 when she jumped down into a trench. The Veteran also stated that she was placed on a profile and, thereafter, received injections in the right knee. The examiner opined that it was less likely than not that the Veteran's chondromalacia of the right knee was due to or aggravated by the service-connected right knee disability. The examiner reasoned that chondromalacia refers to degenerative changes underneath the patella, and it is not caused or aggravated by a sprain which is a time limited condition not causing arthritis. During the October 2020 hearing, the Veteran testified that she had been service connected for her right knee strain for over 16 years, noting that it was a chronic condition that is not the transient self-limiting condition that the VA examiner discussed in his report. The Veteran also testified that the symptoms that she currently experiences in her right knee are the same symptoms that she had since service. The Veteran stated that while she was initially assessed with a right knee strain, it has progressed to moderate to severe arthritis of the knee and that she was told that she has very little cartilage remaining in her knee. The Board finds that the June 2017 medical opinion is inadequate. Here, the Board notes that the rationale in the opinion is inconsistent with the fact that the Veteran is service connected for a right knee disability and that such disability has been assigned a 10 percent rating. Therefore, the condition has not proved to be a time limited condition as the examiner has suggested. Additionally, the examiner has not thoroughly considered the Veteran's lay statements that her symptoms have continued following separation. On remand, the Veteran should be afforded a new VA examination to determine the nature and etiology of her right knee chondromalacia, with consideration of the Veteran's lay statements. 2. Entitlement to service connection for a left ankle disability, to include as secondary to a chronic right knee strain is remanded. The Veteran contends that service connection is warranted for a left ankle disability, to include as secondary to a right knee disability. The Veteran was afforded a VA knee examination in June 2017, at which time the Veteran was assessed with a left knee lateral collateral ligament sprain, and impressions revealed degenerative/traumatic arthritis. At the time of the examination, the Veteran reported that she injured her left ankle in 2015. The Veteran also reported that she suffers from pain and swelling and uses over-the-counter medication and injections for relief. The examiner opined that it was less likely than not that her left ankle disorder was caused by or aggravated by her service-connected right knee. The examiner reasoned that a sprain is a limited condition and that expert literature did not support that left ankle osteoarthritis was the result of right knee strain. The examiner also reported that the ankle and knee were two separate anatomical areas and a sprain in one area would not cause osteoarthritis of another. The examiner also noted that there was no medical literature to support that a left ankle sprain was aggravated beyond its natural progression by a right knee disability. During the October 2020 hearing, the Veteran testified that instability in her right knee caused her to fall and, in turn, caused an additional injury to her left ankle. More specifically, the Veteran stated that, at such time, she rolled her ankle and subsequently found out that she tore two ligaments in her left ankle. The Board finds that the rationale provided in the June 2017 opinion is inadequate because, as stated above, the Veteran's right knee strain is not a time limited condition. Additionally, the Veteran is competent to attest to the circumstances surrounding a fall. On remand, the Veteran should be afforded a new VA examination to determine the nature and etiology of her left ankle disorder, to include whether she sustained additional injuries (that were not noted on the June 2017 examination report) due to instability of the right knee. Further, on remand, the Veteran's lay statements and hearing testimony should be considered. 3. Entitlement to a rating in excess of 80 percent for a kidney disability is remanded. The Veteran is seeking entitlement to a disability rating in excess of 80 percent for a kidney disability. The Veteran contends that the rating does not adequately reflect the severity of her service-connected Type I renal tubular acidosis, renal failure, and chronic kidney disease with chronic urinary tract infections. The Veteran's last VA examination to determine the severity of her kidney disability was in June 2020. Since that time, the Veteran has claimed that her kidney condition has worsened. Specifically, at the October 2020 hearing, she testified that the complications of her kidney condition (e.g., increased kidney stones; bladder issues, including urinary frequency, leakage, and infections; edema; swelling; generalized malaise and fatigue; and weight loss) had worsened. The Veteran also testified that she was "getting closer to that point of getting ready for dialysis" and that her physician was "watching the bloodwork very carefully." VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of her service-connected disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a). As the evidence suggests that the Veteran's kidney disorder may have worsened since her last VA examination, a remand is required to determine the current severity of her service-connected disability. Additionally, the Veteran testified that she was undergoing treatment with a private provider, Dr. S.S. However, these records have not been associated with the claims file. On remand, any outstanding, relevant treatment records should be obtained. 4. Entitlement to a rating in excess of 10 percent for a chronic right knee strain is remanded. The Veteran is seeking entitlement to a disability rating in excess of 10 percent for a right knee disability. The Veteran contends that the rating does not adequately reflect the severity of her service-connected chronic right knee strain. The Veteran's last VA examinations of the right knee were in June 2017 and October 2018. Notably, the examiner noted that there was no lateral instability of the right knee at the time of the October 2018 VA examination; further, the examiner noted that the Veteran did not use an assistive device to ambulate. Since that time, the Veteran has claimed that her right knee disability has worsened. Specifically, at the October 2020 hearing, the Veteran testified that she suffers pain, limitation of motion, and functional instability in the right knee. The Veteran also testified that due to the instability, she has fallen and uses a brace to ambulate. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of her service-connected disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a). As the evidence suggests that the Veteran's right knee strain may have worsened since her last VA examination, a remand is required to determine the current severity of her service-connected disability. Additionally, the Veteran testified that she was undergoing knee injections and that the last injection has been approximately six months prior. However, evidence of such treatment has not been associated with the claims file. On remand, any outstanding, relevant treatment records should be obtained. 5. Entitlement to a rating in excess of 30 percent for hyperparathyroidism with kidney stones is remanded. The Veteran is seeking entitlement to a disability rating in excess of 30 percent for hyperparathyroidism. The Veteran contends that the rating does not adequately reflect the severity of her service-connected hyperparathyroidism. The Veteran's last VA examination to determine the severity of her hyperparathyroidism was in June 2017. Since that time, the Veteran has claimed that her hyperparathyroidism has worsened. Specifically, at the October 2020 hearing, she testified that the complications of her parathyroid glands condition (e.g., recurrent pain, kidney stones, excessive fatigue, loss of appetite, weight loss, and nausea, and fragile bones) had worsened over the past few years. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of her service-connected disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a). As the evidence suggests that the Veteran's hyperparathyroidism may have worsened since her last VA examination, a remand is required to determine the current severity of her service-connected disability. Additionally, the Veteran testified that she was undergoing treatment with a private provider, Dr. S.S. However, these records have not been associated with the claims file. On remand, any outstanding, relevant treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2018 to the present. 2. Contact the Veteran and request that she identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated her for each of the above listed conditions, to include Dr. S.S., the identified treating provider for the kidney disorder and hyperparathyroidism condition. The Veteran also testified as to receiving ongoing treatment for her right knee disability. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 3. RIGHT KNEE: Schedule the Veteran for a VA examination with an appropriate VA examiner who has never examined the Veteran. (a) The examiner should identify all right knee conditions present, including chondromalacia. For each identified diagnosis of the right knee, chondromalacia, the examiner should provide an opinion as to the following questions: (i) Whether it is at least as likely as not (a 50 percent or greater probability) that chondromalacia of the right knee condition manifested during, or is otherwise causally or etiologically related to, active service. (ii) Whether it is at least as likely as not (a 50 percent or greater probability) that chondromalacia of the right knee was caused by the service-connected right knee condition. (iii) Whether it is at least as likely as not (a 50 percent or greater probability) that chondromalacia of the right knee was aggravated by the service-connected right knee condition. The Board notes that the term "aggravation" refers to a chronic or permanent worsening of the underlying condition above and beyond its natural progression. **In providing the above opinions, the examiner must consider the Veteran's lay statements regarding continuous symptoms since service, to specifically include her October 2020 hearing testimony. (b) Determine the current severity of the Veteran's service-connected right knee condition. In answering (b), the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner also must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). 4. LEFT ANKLE: Schedule the Veteran for a VA examination with an appropriate VA examiner who has never examined the Veteran. (a) Identify all left ankle disabilities present. For each identified diagnosis, the examiner should provide an opinion as to the following questions: (i) Whether it is at least as likely as not (a 50 percent or greater probability) that the identified left ankle disorder manifested during, or is otherwise causally or etiologically related to, active service. (ii) Whether it is at least as likely as not (a 50 percent or greater probability) that the identified left ankle disorder was caused by the service-connected right knee strain. (iii) Whether it is at least as likely as not (a 50 percent or greater probability) that the identified left ankle disorder was aggravated by the service-connected right knee disability. In providing the above opinions, the examiner must consider the Veteran's lay statements, to specifically include her October 2020 hearing testimony in which she stated that her right knee caused her to fall rolling her ankle. 5. KIDNEY: Schedule the Veteran for an examination by a nephrologist to determine the current severity of her service-connected kidney disability. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the clinician should identify any symptoms and functional impairments due to the kidney disability alone and discuss the effect of the Veteran's kidney disability on any occupational functioning and activities of daily living. 6. HYPERPARATHYROIDISM: Schedule the Veteran for an examination by an endocrinologist/nephrologist to determine the current severity of her service-connected hyperparathyroidism. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the clinician should identify any symptoms and functional impairments due to hyperparathyroidism alone and discuss the effect of the Veteran's hyperparathyroidism on any occupational functioning and activities of daily living. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson, 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.