Citation Nr: 22040145 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 16-60 771 DATE: July 13, 2022 REMANDED Entitlement to a disability rating in excess of 10 percent for patellofemoral joint with degenerative arthritis, left knee is remanded. Entitlement to a disability rating in excess of 10 percent for patellofemoral degenerative arthritis, right knee is remanded. REASONS FOR REMAND The Veteran had active service from May 1994 to November 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal of the May 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Entitlement to a disability rating in excess of 10 percent for patellofemoral joint with degenerative arthritis, left knee is remanded. 2. Entitlement to a disability rating in excess of 10 percent for patellofemoral degenerative arthritis, right knee is remanded. The Veteran contends that his patellofemoral joint syndrome with degenerative arthritis of the right and left knees has worsened. In April 2021, the Veteran testified at a Board hearing. The Veteran testified that the examiner was telling him when his own knee hurt, versus listening to the Veteran. The Board notes that there was confusion by the Veteran and his representative about the AOJ's explanation of the October 2016 Statement of the Case. The Board is including a limited analysis to help explain to the Veteran the AOJ's conclusions, prior to remanding this matter for a new examination. Based on the Veteran's 2011 VA examination, the Veteran was awarded a 10 percent disability rating because while his loss of range of motion was slight, the examiner noted objective painful motion. Specifically, the Veteran's flexion was limited to 130 flexion for the right knee and 135 for the left knee. The examiner noted that the Veteran had moderate pain, over the full range of motion. The Veteran's loss of range of motion for flexion itself would not be compensable, as it was not limited to 45 degrees as is required, under Diagnostic Code 5260. The AOJ could have attached a 10 percent disability rating to Diagnostic Code 5003 or 5260, for painful motion. However, the Veteran cannot receive a disability rating for both Diagnostic Code 5003 and Diagnostic Code 5260 because that would constitute pyramiding, as these diagnostic codes overlap with the respect to limitation of motion, including limitation of motion caused by pain. In September 2016, the Veteran was afforded a VA examination for his knees. The Veteran was diagnosed with arthritis, which would entitle him to a 10 percent disability rating under Diagnostic Code 5003. The examiner noted that the Veteran's range of motion was normal for both of his knees, which the AOJ noted is an improvement. The examiner noted that there was no objective evidence of pain during the examination. The AOJ indicated that because there was no objective evidence of pain, and the Veteran's range of motion was normal, he could not receive a disability rating for any loss of range of motion for pain. However, because the Veteran now has a diagnosis of arthritis, he would be entitled to a 10 percent disability rating for arthritis. The AOJ discussed the fact that because the Veteran had a 10 percent disability rating for 20 years his rating was protected, even if he did not have a diagnosis of arthritis. Based on the September 2016 examination the AOJ shifted the disability rating for the Veteran's knees from a slight loss of range of motion (flexion) and pain to arthritis. But this change did not impact the Veteran's disability rating. Under Diagnostic Code 5003, the Veteran can only get a single 10 percent disability rating for arthritis, including any additional pain. So, in essence, even if the Veteran felt that his pain was not accurately captured by the examination report, he is still receiving the proper disability rating of 10 percent, as it is contemplated within Diagnostic Code 5003, and there is no evidence of any loss of motion that would allow the Veteran to receive a compensable disability rating. In May 2019, the Veteran was afforded a VA examination. The Veteran's flexion in his right knee was limited to 130 degrees and 120 degrees in his left knee. These limitations would not be compensable under Diagnostic Code 5260, because his limitation would need to be limited to 30 degrees to receive an increased rating of 20 percent. The Board reiterates that the Veteran would not be able to receive a disability rating under both Diagnostic Code 5003 and 5260. The examiner noted that there was objective evidence of pain, and the Veteran had arthritis. The examiner noted that the Veteran did not have flare-ups. The examiner indicated that the Veteran's range of motion during repeated use over time would not significantly limit the Veteran's functional ability, but did not provide estimates of any limitations. The examiner noted that the Veteran did not report flare-ups. However, based on the Veteran's testimony during the April 2021 hearing, the Board is not clear if the Veteran just did not have flare-ups, or if he just did not express them during his last examination. The Board finds a remand is necessary to secure a medical examination that addresses any worsening of the Veteran's bilateral knee disabilities. The Board also notes that the examiner did not provide estimates of the Veteran's functional loss during repeated use over time, and during flare-ups (if applicable). The matter is REMANDED for the following action: 1. Obtain updated treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral knee condition. The clinician must be provided with and review the entire claims file, to include a copy of this remand. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner must provide estimates of range of motion testing during flare-ups (if applicable) as well as range of motion testing on both active and passive motion, in weight-bearing and non-weight bearing, and, if possible, with the range of the opposite undamaged joint. The estimations should include consideration of statements provided by the Veteran. A clear rationale must be provided for all opinions expressed. The examiner should consider the Veteran's lay statements regarding symptoms of his bilateral knee disabilities when making an opinion. 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). 3. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.