Citation Nr: 18147847 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 10-44 826 DATE: November 6, 2018 REMANDED The claim of entitlement to a rating greater than10 percent for right knee degenerative arthritis, status post arthroscopic surgeries and uni-compartmental arthroplasty, prior to January 1, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1997 to June 2004. This appeal to the Board of Veterans’ Appeals (Board) arose from a March 2010 rating decision in which the RO increased the Veteran’s disability rating from zero) to 10 percent, effective February 2, 2010, for what was then characterized as right knee status post arthroscopic surgery for removal of loose bodies with bursal calcifications and mild arthritic change in posterior medial joint space. In April 2010, the Veteran filed a notice of disagreement (NOD) with the assigned rating. In September 2010, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in October 2010. In May 2011 and May 2014, the RO issued supplemental statements of the case (SSOC), each reflecting the continued denial of a higher rating. In October 2010, the RO issued a rating decision granting a temporary total evaluation based on surgical treatment of the right knee necessitating convalescence for the periods from May 26, 2010 to September 1, 2010, and from September 20, 2010 to November 1, 2010. The Veteran filed a NOD requesting an extension of the second period of convalescence in October 2010. In a May 2011 SSOC, the RO extended the temporary total evaluation from November 1, 2010 to January 1, 2011. However, in a May 2011 SOC, the RO denied the Veteran’s request to extend the second period of convalescence beyond January 1, 2011. In a May 2011 decision, a Decision Review Officer (DRO) assigned a disability rating of 10 percent for the Veteran’s right knee disability; from November 1, 2006 to November 1, 2010 and assigned a 30 percent rating for the Veteran’s right knee disability from January 1, 2011. In a July 2011 statement to the VA, the Veteran expressed satisfaction with the 30 percent rating from January 1, 2011 forward, but disagreed with the rating assigned prior to that date. In June 2012, the Veteran testified during a DRO hearing at the RO, and, in December 2015, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In April 2016, the Board denied the Veteran’s claim for a rating greater than 0 percent for right knee disability prior to January 1, 2011, as well as denied the claim for extension of a temporary total rating for the right knee beyond January 1, 2011, for convalescence pursuant to 38 C.F.R. § 4.30. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In January 2017, the Court granted a partial Joint Motion for Remand (JMR) filed by representatives for both parties, vacating that portion of the decision in which the Board denied an increased rating, and remanding that matter to the Board for further proceedings consistent with the JMR. In the JMR, the parties noted that the Veteran did not wish to appeal the Board’s denial of an extension of a temporary total rating, for convalescence, beyond January 1, 2011. In August 2017, the Board remanded the higher rating claim to the agency of original jurisdiction (AOJ) for additional development. Unfortunately, the Board finds that further AOJ action on the remaining matter on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the prior remand, in the January 2017 JMR, the parties found deficient the Board’s reasons and bases for the prior finding that Diagnostic Codes (DCs) 5258 and 5259 were not applicable, given medical evidence indicating that the Veteran experienced symptoms such as locking, pain, effusion, and mechanical problems; as well as his testimony as to experiencing locking knee problems that caused severe pain and restricted movement. The parties also noted that, in finding that DC 5055 does not apply to partial knee replacements, only to total knee replacements, the Board erred in citing and relying upon Hudgens v. Gibson, 26 Vet. App. 558, 560 (2014), which was reversed by the Federal Circuit in Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016). Thus, to any avoid prejudice to the Veteran, the Board directed that, in adjudicating the claim, the AOJ should specifically consider and discuss, in the first instance, the applicability of DC 5055 in evaluating the Veteran’s right knee disability, as well as whether DC 5258 or 5259 provides a basis for any higher or additional rating, for the period in question. Notably, the January 2018 SSOC contains a statement that DCs 5055, 5258, and 5259 were considered; however, there is no meaningful discussion whatsoever of the applicability of any of those DCs, as instructed by the Board. Under these circumstances, the Board is unable to find substantial compliance with the prior remand directives; hence, another remand of this matter is required to ensure such compliance. Stegall, supra.; see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board’s remand instructions were substantially complied with). While this matter is on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim for higher rating prior to January 1, 2011 (particularly regarding any relevant, private (non-VA) treatment), explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103 (b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA decide a claim before the expiration of the one-year notice period). provider(s). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal. As indicated, adjudication of the claim must include consideration of the applicability of DC 5055, as well as DCs 5258 and 5259, in evaluating the right knee disability. The AOJ should also consider whether any staged rating—assignment of different ratings for distinct periods of time, based on the facts found—for the period prior to January 1, 2011, is appropriate.   The matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the higher rating claim on appeal considering all pertinent evidence (to particularly include that added to the claims file since the last adjudication), and all legal authority. Adjudication of the claim must include specific consideration and discussion of the applicability of DC 5055 in evaluating the Veteran’s right knee disability, as well as whether DC 5258 or 5259 provides a basis for any higher or additional rating. Also consider whether, for the relevant period prior to prior to January 1, 2011, any staged rating is appropriate. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App.at 271. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel