Citation Nr: 22018704 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 15-30 640 DATE: March 30, 2022 REMANDED Entitlement to a rating in excess of 10 percent for right knee disability with limitation of flexion is remanded. Entitlement to a rating in excess of 10 percent for right knee disability with limitation of extension is remanded. Entitlement to a rating in excess of 10 percent for left knee disability with limitation of flexion is remanded. Entitlement to a rating in excess of 10 percent for left knee disability with limitation of extension is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to August 1983. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at the Board of Veterans' Appeals (Board) at a hearing conducted in December 2018. A transcript of the hearing is associated with the claims file. The Board remanded appealed claims for increased ratings for left and right knee disabilities (then only a single disability for each knee, subsequently expanded as reflected above) in April 2019 and again in July 2021 (the April 2019 remanded only for VA Regional Office (RO) issuance of a supplemental statement of the case (SSOC), the July 2021 remand to develop the claims). The case now returns to the Board for further review. 1. Entitlement to an increased rating for right knee disability with limitation of flexion is remanded. 2. Entitlement to an increased rating for right knee disability with limitation of extension is remanded. 3. Entitlement to an increased rating for left knee disability with limitation of flexion is remanded. 4. Entitlement to an increased rating for left knee disability with limitation of extension is remanded. The Board remanded the appealed bilateral knee disability claims in July 2021 for an addendum due to inadequacy of prior VA examination in October 2020. The Board specifically found that examination had not been obtained addressing patellar instability to appropriately evaluate the knee disabilities based on changes to rating criteria under Diagnostic Code 5257 which became effective February 7, 2021. The Board requested that an examiner address whether the Veteran had a condition involving the patellofemoral complex with recurrent instability, which should have been answered for each knee. Unfortunately, neither an obtained October 2021 VA examination nor a December 2021 addendum report addressed this question. While the December 2021 examiner noted that "chondromalacia patella is a 'condition involving the patellofemoral complex,' " the examiner did not address whether the Veteran had recurrent instability associated with such complex. Hence, substantial compliance with the Board remand was not accomplished, which necessitates remand to fulfill such instructions. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Regrettably, December 2021 addendum report also neglected to note the most recent VA examination of the knees in October 2021, and instead based its records-based assessment on a VA examination of the knees conducted in October 2020. Range of motion of the knees as recorded at the October 2021 examination was significantly better in each knee than that recorded in October 2020, and hence a complete, contemporaneous picture of the knees was not relied upon by the December 2021 evaluation. A medical opinion is inadequate if it relies on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Hence, the knees must be evaluated with consideration of the most recent findings. Additionally, at his knee examinations, the Veteran reported constantly needing to use a cane, walker, wheelchair, or electric scooter, as well as knee braces, all due to his knees. Necessarily, different levels of impairment would necessitate use of a cane versus a walker versus a wheelchair or scooter, and the level of impairment necessitating use of one or more of these devices has not been well-explained by examiners. Additionally, chondromalacia is not often seen to produce the debilitating level of impairment reported by the Veteran. Hence, objective findings including scans or studies should be undertaken to better ascertain the level of disability present in each knee, both due to the varied presentations of impairment between the October 2020 and October 2021 VA examinations, and due to questions of disability due to the knees versus other parts. The December 2021 examiner also based assessments on reviewed MRI scans from August 2009, which as 12-years-old scans cannot reasonably be considered contemporaneous evidence upon which to base current findings. Recent VA treatment records reflect that the Veteran also suffers from low back disability, bilateral lower extremity venous stasis changes, pulmonary disease (receiving respiratory therapy with home oxygen), ankle joint pain, and painful swelling and osteoarthritis of the hallux of the left foot. Substantial unanswered questions thus arise whether the Veteran's reported severe ambulatory limitations are due to impairments of other parts. For example, during an April 22, 2020 VA telephonic care contact, the Veteran reported limited mobility due to back pain, not mentioning limitations due to his knees. The prior VA knee examiners failed to consider any of these other conditions as causal of the Veteran's reported significant ambulatory limitations. Other disabilities which are distinguishable in their symptoms and impacts on functioning from those of the service-connected disability should not have their symptoms and impacts on functioning attributed to the service-connected disability for purposes of assigning a disability rating. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Hence, upon remand examination, impairment due to other disabilities should be distinguished, to the extent feasible, from that due to disability of each knee. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any additional VA and pertinent private treatment records, with the Veteran's authorization and assistance, as appropriate. If any records cannot be obtained, the Veteran and his authorized representative should be appropriately notified. 2. Thereafter, the Veteran should be afforded a new in person examination to address the nature and severity of disability of each knee, by a medical professional qualified to do so. The claims file should be reviewed for the examination, and any necessary tests or studies should be obtained, including as explained below. If feasible, and if current findings contradict those from prior examinations, the examiner should endeavor to provide retrospective findings of the nature and severity of the left and right knee disabilities over the claim period. The examiner should review prior medical examination reports including from October 2020, October 2021, and December 2021. The examiner should note in this regard that these prior examinations were deficient as follows: examiners failed to obtain contemporaneous scans upon which to base findings and assessments (the December 2021 examiner relied on MRI findings from August 2009); significantly discrepant range of motion findings and assessments between the October 2020 and October 2021 examinations (with some markedly improved range of motion in October 2021) were not addressed; the severe limitations of functioning, including reported need to constantly use a walker for short distances and otherwise a wheelchair or scooter were not explained based on the limited knee findings, and hence some effort should have been made to address whether subjective symptoms were supported by objective findings; and limitations due to other disabilities, particularly low back disability, pulmonary disease (the Veteran receiving respiratory therapy with home oxygen), bilateral lower extremity venous stasis changes, ankle joint pain, and painful osteoarthritis and swelling of the hallux of the left foot, were not distinguished to the extent feasible from impaired functioning due to the knee disabilities. The examiner should note pertinent treatment records, such as an April 22, 2020 VA telephonic care contact, when the Veteran reported limited mobility due to back pain, not mentioning limitations due to his knees. Thus, pertinent contemporaneous scans or studies of the knees should be reviewed or obtained, with pertinent findings reported in detail in the examination report. Objective findings should be relied upon to the extent feasible, and discrepant range of motion and other knee findings from October 2020 and October 2021 examinations should be addressed. The examiner should also explicitly address whether objective findings of disability support the Veteran's demonstrations of functioning and his reports of impaired functioning due to the knees, including demonstrations and self-reports of disability at prior examinations as well as at the current examination. The examiner should explain what complaints of knee impairments are supported by objective findings. The examiner should also address other disabilities (including low back disability, pulmonary disease, venous stasis changes, ankle joint pain, and painful osteoarthritis of the hallux of the left foot), and the extent to which these disabilities rather than the knee disabilities result in reported limitations of functioning including need to use a cane, walker, wheelchair, or scooter, and limitations of standing and ambulation. Impairment due to other disabilities should be distinguished, to the extent feasible, from that due to disability of each knee. To comply with the Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing of each knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. For each knee the examiner must also address whether there is recurrent instability associated with a condition involving the patellofemoral complex, inclusive of chondromalacia patella. This discussion should include a full description of the whether this disability is manifested by a ligament tear (incomplete, complete), a diagnosed condition involving the quadriceps tendon, the patella, or the patellar tendon, whether or not such has been repaired, and whether assistant devices such as crutches, a walker, and/or a brace have been prescribed by a medical professional. (This is necessary to rate each knee in accordance with recent changes to Diagnostic Code 5257.) The Veteran's reports of instability, giving-way, and falls, if any, should be addressed. All pertinent symptomatology and findings must be reported in detail in accordance with rating knee disabilities. All ranges of motion involving the Veteran's service-connected left and right knee disabilities should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's knee disabilities, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's disability of each knee could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. To comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use over time, and if so, the examiner must estimate range of motion during flare-ups or repetitive use over time based upon relevant information elicited from the Veteran, review of the claims file, and the current examination results pertaining to the frequency, duration, characteristics, severity, and functional loss during flare-ups and repetitive use over time. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology, including reduced range of motion. If there is a medical basis to support or doubt the history provided by the Veteran, particularly pertaining to his description of reduced range of motion during flare-ups or repetitive use over time or his descriptions of other functional impairment due to the knees (impaired ambulation, instability, falls, etcetera), the examiner should provide a fully reasoned explanation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 3. Thereafter, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.