Citation Nr: 20009864 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 14-14 397 DATE: February 5, 2020 REMANDED Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the left knee is remanded. Entitlement to an earlier effective date for radiculopathy in the right lower extremity is remanded. Entitlement to an earlier effective date for radiculopathy in the left lower extremity is remanded. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). As an initial matter, the Board notes that the Veteran submitted a Formal Appeal to the Board in November 2018 regarding a separate appeal (timeliness of a Form 9-Formal Appeal to the Board). However, this issue has not yet been certified to the Board and therefore the Board does not have jurisdiction to decide this issue at this time. The Veteran had active military service from February 1999 to June 2003 in the Marine Corps and from October 2004 to August 2006 in the Army National Guard. 1. Entitlement to ratings in excess of 10 percent for patellofemoral syndrome of the right and left knees is remanded. This matter was previously before the Board in November 2017 and was remanded for the Veteran to undergo a VA knee examination. Subsequently, a VA examination was scheduled in May 2018, for which the Veteran failed to appear. However, in June 2018, the Veteran submitted a statement documenting that he missed his examination due to a traffic accident and requested another examination. To date, the Veteran has not been afforded another examination in connection with his appeal. Therefore, a remand is warranted to afford the Veteran an opportunity to undergo another examination. Additionally, the Veteran’s most recent Statement of the Case (SOC) was in December 2013. However, a significant amount of evidence has been added to the Veteran’s claims file since the December 2013 SOC, to include VA treatment records, and VA examinations. When pertinent evidence is submitted by an appellant or representative and is received by the Board pursuant to 38 C.F.R. § 19.37(b), “[t]he Board will then determine what action is required with respect to the additional evidence.” Here, the evidence was not submitted but rather was created by VA. In these circumstances, a remand is warranted for initial AOJ review of the evidence and, if the claim remains denied, issuance of a SSOC to the Veteran and his representative if necessary. See Sprinkle v. Shinseki, 733 F.3d 1180, 1184 (Fed. Cir. 2013) (noting that a SSOC is issued when additional pertinent evidence is received by the AOJ after the issuance of a SOC or a prior SSOC “[t]o ensure that claimants receive the benefit of this two-tiered review within the agency.”) 2. Entitlement to earlier effective dates for radiculopathy in the right and left lower extremities is remanded. These issues were previously before the Board in November 2017 and were remanded for issuance of a statement of the case (SOC). However, to date, an SOC regarding entitlement to earlier effective dates for radiculopathy in the right and left lower extremities has not been issued. As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, in accordance with Stegall, remand for full compliance with the Board’s prior remand is warranted. Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran’s claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service connected left and right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to earlier effective dates for radiculopathy in the right and left lower extremities. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. (Continued on the next page)   4. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.