Citation Nr: 21041233 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-39 580 DATE: July 8, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for bilateral chondromalacia patella, from May 26, 2011 to November 17, 2014, is remanded. Entitlement to a disability rating in excess of 10 percent for postoperative chondromalacia patella of the left knee, from November 17, 2014 onward, is remanded. Entitlement to a disability rating in excess of 10 percent for postoperative chondromalacia patella of the right knee, from November 17, 2014 onward, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1984 to January 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a disability rating in excess of 10 percent for bilateral chondromalacia patella, also claimed as degenerative joint disease and range of motion pain. The Veteran timely appealed the March 2012 rating decision. In a July 2016 rating decision, the RO recharacterized the claims as increased rating claims for bilateral knee post-operative chondromalacia patella, to reflect that the Veteran had previously undergone surgical procedures on both knees, and that going forward, the bilateral knees would be evaluated accordingly. In October 2018, the Board recharacterized the issues as set forth on the cover page of the decision, and remanded the case for further development and adjudicative action. In a July 2020 supplementary statement of the case (SSOC), the RO continued the denial of disability ratings (i) in excess of 10 percent for bilateral chondromalacia patella from May 26, 2011 to November 17, 2014; and (ii) in excess of 10 percent for postoperative chondromalacia patella of the bilateral knees, from November 17, 2014 onward. 1. Entitlement to a disability rating in excess of 10 percent for bilateral chondromalacia patella, from May 26, 2011 to November 17, 2014 2. Entitlement to a disability rating in excess of 10 percent for postoperative chondromalacia patella of the left knee, from November 17, 2014 onward 3. Entitlement to a disability rating in excess of 10 percent for postoperative chondromalacia patella of the right knee, from November 17, 2014 onward The Veteran seeks an increased disability rating in excess of 10 percent for his bilateral knee disabilities, for the entire period on appeal. Pursuant to the October 2018 Board remand, the Veteran was scheduled for a VA examination for the knees; he attended the examination in August 2019. As noted above, the RO issued a SSOC in July 2020. In the July 2020 SSOC, the Board considered the August 2019 VA examination report and results, as well as VA treatment records from April 2020. The April 2020 VA treatment records show that the Veteran had a fall within the prior twelve months due to his knee giving out. In October 2020, the Veteran submitted private treatment records from January 2003 that showed complaints of knee pain and instability, as well as an MRI report of the left knee. The note reflects that "degenerative change from prior trauma is likely." The records also show treatments for knee pain and physical therapy notes. The Veteran is not currently in receipt of a disability rating for the knees based on instability. Another batch of private treatment records received in October 2020 reflects that the Veteran underwent treatment and diagnostic imaging (X-rays) for bilateral knee pain in October 2020. Notably, the records also show that the Veteran's daily painkiller dosage was 800 mg of ibuprofen per day, up from 500mg per day of ibuprofen at the time of the August 2019 VA examination. Accordingly, the evidence added since the July 2020 SSOC raises the possibility that the Veteran has had instability in the knees for the entire appeal period, which would warrant assignment of a separate rating; and, raises the possibility that his current bilateral knee disability picture is worse than was shown at the August 2019 VA examination. "Where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted." Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For that reason, a remand is necessary to determine the current severity of the bilateral knee disabilities; and, to address the new evidence which raises the possibility that a separate rating, based on instability, is warranted during the appeal period. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an orthopedist, if possible, to determine the current severity of his bilateral chondromalacia patella. In determining the current severity of the bilateral knee disabilities, the examiner should conduct all necessary testing. Additionally, the examiner should consider the Veteran's lay statements, including as to range of motion, flare-ups, and instability. Importantly, by remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The examiner should also review the private treatment records, specifically from January 2003, and discuss whether the Veteran has, at any time during the appeal period, had instability of either knee. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.