Citation Nr: 22014659 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-52 978 DATE: March 14, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is remanded. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 2010 to October 2014. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, remand is required for the issues on appeal. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 1. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is remanded. 2. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is remanded. 3. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the left knee is remanded. The Veteran seeks increased ratings for her service-connected lumbar spine and bilateral knee disabilities. The Veteran last underwent VA examinations to assess the severity of these disabilities in May 2015. In her October 2017 Substantive Appeal, the Veteran alleged that her low back and knee symptoms have worsened. The Board notes that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. The Board also acknowledges the considerable length of time since the Veteran's disabilities were last evaluated on VA examination. Therefore, remand is warranted to afford the Veteran new VA examinations to assess the current severity of her lumbar spine and bilateral knee disabilities. See 38 C.F.R. § 3.159; see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Additionally, the Board notes that since the May 2015 VA examinations, the United States Court of Appeals for Veterans Claims (Court), has clarified the requirements for musculoskeletal examinations. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that, pursuant to 38 C.F.R. § 4.59, an adequate VA joint examination must include testing the joint for pain and range of motion on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must estimate the functional loss that would occur during flare-ups. Specifically, examiners must name the precipitating and alleviating factors for the flare-ups and estimate, per the veteran's reports, the extent to which flare-ups affect functional impairment in terms of additional loss of range of motion. In December 2020, the Veteran submitted VA disability benefits questionnaires (DBQs) completed by a private physician for her lumbar spine and bilateral knee disabilities. However, upon review of these DBQs, the Board observes that the private examiner did not conduct the examinations in accordance with Correia and Sharp. As such, the Board finds that these more-recent examinations are not adequate to properly evaluate the current severity of the Veteran's disabilities. Therefore, on remand, the Veteran must undergo VA joint examinations of her musculoskeletal disabilities that follow the Court's guidance in Correia and Sharp. The Board reminds the VA examiner that failure to comply with the requirements outlined by the Court renders an examination report inadequate and will result in further remand of the Veteran's claims. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Contact the Veteran and request that she provide information as to any outstanding private treatment records relevant to her appeal. After obtaining the necessary authorization, the RO must make reasonable efforts to obtain any identified records. 3. Then, schedule the Veteran for VA joint examinations with an appropriate medical professional to fully assess the current severity of her lumbar spine disability and bilateral knee disability. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. A complete history of symptoms must be elicited from the Veteran. [** If the Veteran is unable or unwilling to report for in-person VA examinations, the RO must obtain an addendum medical opinion from a VA examiner who, upon review of the December 2020 private DBQs and any other medical evidence of record, provides the requested information to the best of their ability **] Thereafter, the examiner is asked to fully respond to the following: (a) Report the extent of the symptoms of the Veteran's lumbar spine and bilateral knee disabilities in accordance with VA rating criteria. (b) Conduct range of motion testing of the lumbar spine and bilateral knees, specifically noting the range of motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (c) Render specific findings as to whether there is objective evidence of pain on mo ion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine and bilateral knee disabilities. If pain on motion is observed, the examiner should indicate the point at which pain begins. (d) State whether the examination is taking place during a period of flare-up. If not, the examiner must ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment experienced during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and other evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must fully explain the basis of such an opinion. It should be noted that VA's Clinicians Guide specifically advises examiners to procure information necessary to render an opinion regarding flare-ups from veterans. A full and complete explanatory rationale must be provided for any opinion(s) offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, s/he should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.