Citation Nr: 23014875 Decision Date: 03/13/23 Archive Date: 03/13/23 DOCKET NO. 18-45 573 DATE: March 13, 2023 REMANDED Entitlement to an increased rating for lumbago (claimed as back pain) is remanded. Entitlement to an increased rating for bilateral pes planus (also claimed as flat feet, bunion) is remanded. Entitlement to an increased rating for right knee osteoarthritis is remanded. REASONS FOR REMAND These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2017 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2023, the Veteran testified at a video virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. 1. Lumbago (back pain) At his hearing before the Board, the Veteran testified that his back condition had worsened since his last VA examination, and it now included radiating pain, tingling and numbness to his lower extremities. Additionally, the Veteran reported flare-ups three times in the last six months, which caused pain and precluded movement. The Board finds that a new VA examination is necessary to address these new complaints, and reports of worsening of the condition. 38 C.F.R. § 3.327(a). 2. Bilateral pes planus At his hearing, the Veteran testified that his bilateral pes planus had worsened since the last examination. He additionally described flare-ups of his feet approximately three times weekly, leading to pain, swelling and restricted mobility for approximately an hour before symptoms abated. The Board finds that a new VA examination is necessary to address these new complaints, and reports of worsening of the condition. 38 C.F.R. § 3.327(a). 3. Right knee osteoarthritis At his hearing, the Veteran testified that his right knee condition had worsened since his most recent VA examination. The Veteran reported intermittent instances of sharp pain which caused him to favor his other leg for support, which he did not necessarily think were flare-ups. The episodes of severe pain prevented kneeling and range of motion. The Board finds that a new VA examination is necessary to address these new complaints, and reports of worsening of the condition. 38 C.F.R. § 3.327(a). These matters are REMANDED for the following actions: 1. Schedule the Veteran for a new VA examination to determine the present level of severity of the Veteran's service-connected back condition (lumbago). The examiner should indicate review of the record and conduct all necessary testing. The examiner should address the Veteran's testimony before the Board that his condition has worsened since the last examination, that he experiences flare-ups, and he experiences radiating pain, tingling and numbness into his lower extremities. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are require), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a new VA examination to determine the present level of severity of the Veteran's service-connected bilateral pes planus. The examiner should indicate review of the record and conduct all necessary testing. The examiner should address the Veteran's testimony before the Board that his condition has worsened since the last examination, and that he experiences flare-ups of severe pain several times weekly. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are require), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for a new VA examination to determine the present level of severity of the Veteran's service-connected right knee condition. The examiner should address the Veteran's testimony before the Board that his condition has worsened since the last examination, and that he experiences intermittent episodes of severe pain which limit his movement and activity. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knee disability, and how they characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare ups, identify the: frequency; duration; precipitating factors; and alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (approximately 50 percent probability or greater) that during a flare up range of motion is additionally limited to 30 degrees (flexion). Please explain why or why not. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (approximately 50 percent probability or greater) that repetitive use over time additionally limits motion to 30 degrees or less (for flexion) or 10 degrees or more (for extension). Please explain why or why not. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (approximately 50 percent probability or greater) that during a flare up the disability is manifested by effusion and/or locking. If it is not possible to provide a specific measurement based on direct observation, the examiner is to provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (CONTINUED ON THE NEXT PAGE) **The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time.** Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.