Citation Nr: A25035684 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 241009-482387 DATE: April 17, 2025 REMANDED Entitlement to a rating in excess of 10 percent disabling for service-connected left knee patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent disabling for service-connected left knee instability is remanded. Entitlement to a rating in excess of 10 percent disabling for service-connected intervertebral disc syndrome with lumbosacral strain and degenerative arthritis (lumbar spine disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 2002 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2024 rating decision. In February 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issues of increased ratings for left knee and lumbar disabilities most recently addressed in a September 2022 rating decision. In February 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the April 2023 supplemental claim rating decision. In February 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior April 2023 decision. In the October 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2023 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claims. 38 C.F.R. § 3.103(c)(2)(ii). Under the AMA, remands are limited to correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a). While the Board sincerely regrets further delay, for the reasons discussed below, the Board finds that remand is required in order to correct duty to assist errors that occurred prior to the issuance of the rating decision on appeal. Specifically, the Board finds that remand is necessary to obtain adequate VA medical opinions. 1. Entitlement to a rating in excess of 10 percent disabling for service-connected left knee patellofemoral pain syndrome is remanded. 2. Entitlement to a rating in excess of 10 percent disabling for service-connected left knee instability is remanded. The Veteran contends that the severity of his left knee patellofemoral pain syndrome and left knee instability warrant higher ratings than are currently assigned. The Veteran's left knee patellofemoral pain syndrome has been rated 10 percent disabling based on painful motion of the knee under DC 5260 from May 16, 2007; and his left knee instability has been rated 10 percent disabling under DC 5257 from September 10, 2021. In connection with his claim for increased ratings, the Veteran was afforded a VA Knee Conditions examination in March 2023. Based on an in-person examination and review of the Veteran's VA e-folder, the VA examiner confirmed diagnoses of left knee instability and bilateral knee patellofemoral pain syndrome. The examiner noted the Veteran's report of knee pain every day all day long that varies pending usage and activities. The examiner noted the Veteran's report that his left knee gives out and that he has flares involving more intense pain that are moderate in severity, that occur 1 to 2 times per week, and last 4 to 6 hours. The examiner noted the Veteran's report that the flare ups make it more difficult to stand or walk for long periods and that he will avoid the stairs and take the elevator whenever he can. The Veteran reported that he is not able to stand or walk for long periods of time; that he can't stand up from sitting easily or walk up and down stairs easily; that he cannot squat and has a really hard time getting back up, so it keeps him from doing yard work; and that he can't drive long distances. The VA examiner noted the Veteran's report of treatment including Naprosyn, Icy Hot, and Flexeril. Upon examination, specifically with respect to the left knee, the examiner reported that abnormal range of motion measured on exam would cause difficulties with standing, sitting, walking, ambulating stairs or ramps, and bending the joint to bend down to pick something up, along with other everyday tasks. The Veteran exhibited flexion to 130 degrees and extension to 0 degrees, with pain noted on exam with each. Passive range of motion was the same as active range of motion, and again pain was noted on examination with both flexion and extension. There was evidence of pain with active and passive motion that causes functional loss, and the examiner reported that the pain with active and passive range of motion would cause difficulties with standing, sitting, walking, ambulating stairs or ramps, and running/jogging along with other everyday tasks. There was objective evidence of crepitus and objective evidence of tenderness to palpation at the inner aspect at the lateral collateral ligament area and at 6 o'clock position below the patella. The examiner reported that the severity was mild - reported pain with no facial grimaces or withdraw. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion afterwards. The Veteran was not examined immediately after repeated use over time nor during a flare up, and the examiner reported that procured evidence does not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability after repeated use over time or during a flare up. The examiner reported additional factors contributing to disability include interference with standing, disturbance of locomotion, less movement than normal, and instability of station, and that pain leads to decreased function range of motion of the knee joint. The examiner reported that the Veteran does not have muscle atrophy or ankylosis, but that there is recurrent subluxation or persistent instability. The examiner reported no ligament tear (sprain), and that the Veteran did not require a prescription by a medical provider for any assistive device. The examiner reported there was no recurrent patellar instability. The examiner reported no tibial or fibular impairment, no meniscal conditions, no surgical procedures, and no other pertinent physical findings, complications, conditions, signs, symptoms, and scars. The examiner reported that the Veteran regularly uses a knee brace, and that it is used with known activities that will aggravate knee pain or with flare up pain, used 2 to 3 times a week for 4 to 6 hours. The examiner reviewed the history of diagnostic imaging results and reported no imaging studies had been performed in conjunction with this examination. The examiner reported that the Veteran's knee condition would impact his ability to perform occupational tasks that involve prolonged walking, prolonged standing, ambulating ramps, and difficulty standing from a sitting position. The examiner remarked that there was no objective evidence of knee instability, but the diagnosis was retained as the Veteran is service connected for the condition. The examiner reported that the Lachman's test, posterior drawer test, and medial and lateral instability test were all normal bilaterally. Lastly, the examiner remarked that there is a worsening of the Veteran's symptoms; however, no change to the service-connected diagnosis and no additional diagnoses have been rendered. See March 2023 VA examination report. Upon review of the record, for the reasons that follow, the Board finds that the appeal must be remanded. Although the VA examiner noted that the Veteran treated his knee disability with Naprosyn, Flexeril, and Icy Hot, the VA examiner did not provide any indication as to what effect, if any, the Veteran's medication had on his knee symptomatology. The Board notes that where a diagnostic code does not explicitly contemplate the ameliorative effects of medication on a disability, the Board must evaluate the disability without regard to the ameliorative effects of the medication. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) ("[I]f [a diagnostic code] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication."). The Diagnostic Codes potentially applicable to knee disabilities do not explicitly contemplate the ameliorative effects of medication. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Given the above, the Board finds the March 2023 VA examination to be inadequate for the purpose of readjudicating the Veteran's appealed issues. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Failure to obtain an adequate medical opinion is a pre-decisional duty to assist error requiring correction on remand. Accordingly, remand is required in order to obtain an adequate opinion regarding the severity of the Veteran's left knee disability without consideration of any ameliorative effects of medication. 3. Entitlement to a rating in excess of 10 percent disabling for service-connected intervertebral disc syndrome with lumbosacral strain and degenerative arthritis (lumbar spine disability) is remanded. The Veteran contends that the severity of his service-connected lumbar spine disability warrants a higher rating than is currently assigned. The Veteran's service-connected lumbar spine disability is currently assigned a rating of 10 percent disabling under Diagnostic Code 5243. In connection with his claim for an increased rating, the Veteran was afforded a VA Back Conditions examination in March 2023. Based on an in-person examination and review of the Veteran's VA e-folder, the VA examiner reported diagnoses of degenerative arthritis, lumbosacral strain, and IVDS. The examiner noted the Veteran's report of treatment including Naprosyn, Flexeril, and Icy Hot. The examiner noted the Veteran's report that his flexibility and range of motion is getting worse and that he has moderate flare ups that include more severe pain and that occur one time per week and last 6 to 8 hours. The examiner noted the Veteran's report that he cannot stand, sit, or walk for longer periods during flare ups; and that he takes his meds and changes positions frequently. The examiner noted the Veteran's report of functional loss or impairment to the extent that he is not able to stand, sit, or walk for longer periods of time; he can't stand up from a sitting position or walk up and down stairs easily; he is not able to carry or lift heavy things anymore; it is difficult to bend down to pick up things off the floor or do things like tie his shoes; he has a difficulty time sleeping due to his back pain; and he has to get up out of bed and do stretching exercises, then go sleep on the couch. On examination, the Veteran's range of motion included forward flexion to 75 degrees; extension to 25 degrees; right and left lateral flexion to 25 degrees each; and right and left lateral rotation to 25 degrees each. The examiner noted pain on examination with all range of motion and stated that range of motion itself contributes to a functional loss as it causes interference with bending, twisting, turning, prolonged walking, prolonged sitting, prolonged standing, stooping, squatting, ambulating ramps, and ambulating stairs. Passive range of motion was not tested; the examiner reported that the Veteran reports a history of chronic lower back pain diagnosis as degenerative arthritis, therefore passive range of motion is medically contraindicated as it may further aggravate the Veteran's pain and possibly cause harm to the Veteran. The examiner reported evince of pain with active motion that causes functional loss; objective evidence of mild lumbar paraspinal tenderness to palpation with no facial grimaces or withdraw. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion afterwards. The Veteran was not examined immediately after repeated use over time nor during a flare up, and the examiner reported that procured evidence does not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability after repeated use over time or during a flare up. The examiner reported that the Veteran had localized lumbar paraspinal tenderness to palpation with no abnormal gait nor abnormal spinal contour noted, and that the Veteran ambulates with a smooth steady gait and no assistive device. The examiner reported that the Veteran had no guarding and no muscle spasm. The examiner reported additional factors contributing to disability including interference with sitting and standing and disturbance of locomotion, and that pain leads to decreased function and range of motion of the lumbar spine. The VA examiner reported that the Veteran had full muscle strength universally and no muscle atrophy; normal deep tendon reflexes; normal sensation to light touch testing; negative straight leg raising tests bilaterally; and no radicular pain or any other signs or symptoms due to radiculopathy. The examiner reported no ankylosis nor other neurologic abnormalities. The examiner reported that the Veteran has IVDS of the thoracolumbar spine, but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner reported that the Veteran constantly uses a brace for his degenerative arthritis of the lumbar spine. The examiner reported that there were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars. The examiner discussed the diagnostic imaging results of record and reported that there is no imaging evidence of a thoracolumbar vertebral fracture with loss of 50 percent or more of height. The examiner reported that the Veteran's back disability would impact the Veteran's ability to perform occupational tasks that involve twisting/turning side to side, bending, prolonged walking, prolonged sitting or standing, stooping, or squatting; and that the Veteran is unable to perform any heavy lifting, pushing, or carrying due to back pain. The examiner remarked that there was a worsening of the Veteran's symptoms, however no change to the service-connected diagnosis and no additional diagnoses had been rendered. See March 2023 VA examination report. Upon review of the record, for the reasons that follow, the Board finds that the appeal must be remanded. Unfortunately, the Board finds the March 2023 examination inadequate for several reasons. First, the March 2023 VA examiner opined that the Veteran did not have "radicular pain or any other signs or symptoms due to radiculopathy." However, the VA examiner noted the Veteran's report of current symptoms including radiation of pain from the lumbar spine to bilateral gluteal region - left worse than right. The Board notes that an opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Next, although the VA examiner noted that the Veteran treated his back disability with Naprosyn, Flexeril, and Icy Hot, the VA examiner did not provide any indication as to what effect, if any, the Veteran's medication had on his back symptomatology. The Board notes that where a diagnostic code does not explicitly contemplate the ameliorative effects of medication on a disability, the Board must evaluate the disability without regard to the ameliorative effects of the medication. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) ("[I]f [a diagnostic code] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication."). The Diagnostic Codes potentially applicable to back disabilities do not explicitly contemplate the ameliorative effects of medication. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5244. Given the above, the Board finds the March 2023 VA examination to be inadequate for the purpose of readjudicating the Veteran's appealed issue. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Failure to obtain an adequate medical opinion is a pre-decisional duty to assist error requiring correction on remand. Accordingly, remand is required in order to obtain an adequate opinion regarding the severity of the Veteran's back disability without consideration of any ameliorative effects of medication. The matters are REMANDED for the following action(s): 1. Provide the Veteran with an appropriate examination to determine the severity of the service-connected left knee disabilities. The entire claims file, including this Remand, must be made available to-and reviewed by-the examiner. The need for an in-person examination is left to the discretion of the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) To the extent possible, the clinician must opine as to whether any medications the Veteran used affected the severity of his knee disabilities. If so, the clinician should identify each medication and clearly explain how such medication affected the condition. If any such medication was productive of ameliorative effects, the clinician must clearly identify such effects and opine as to how severe the condition would have been absent such medication, to specifically include whether there would have been any additional pain, weakened movement, excess fatigability, or incoordination on movement, or loss of range of motion. (b.) Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Provide the Veteran with an appropriate examination to determine the severity of the service-connected back disability. The entire claims file, including this Remand, must be made available to-and reviewed by-the examiner. The need for an in-person examination is left to the discretion of the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) To the extent possible, the clinician must opine as to whether any medications the Veteran used affected the severity of his back disability. If so, the clinician should identify each medication and clearly explain how such medication affected the condition. If any such medication was productive of ameliorative effects, the clinician must clearly identify such effects and opine as to how severe the condition would have been absent such medication, to specifically include whether there would have been any additional pain, weakened movement, excess fatigability, or incoordination on movement, or loss of range of motion. (b.) Additionally, the clinician must address the complaints of radiculopathy as reported in the March 2023 VA examination. (c.) Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. J.P. Norman Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer 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.