Citation Nr: 21061359 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 20-13 545 DATE: October 1, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome prior to January 17, 2020 is remanded. Entitlement to a rating in excess of 30 percent for degenerative arthritis of the left knee from January 17, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1997 to August 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in pertinent part, established an initial 10 percent disability rating for patellofemoral syndrome of the left knee, effective August 17, 2007. In January 2020, while the present appeal was pending, the RO recharacterized the Veteran's left knee disability as degenerative arthritis and increased the rating to 30 percent, effective January 17, 2020. The 10 percent rating in effect prior to that date remained undisturbed. In May 2020, the Board denied higher ratings for the Veteran's left knee disability, both before and after January 17, 2020. He appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for action consistent with the terms of the JMR. 1. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome prior to January 17, 2020 is remanded. 2. Entitlement to a rating in excess of 30 percent for degenerative arthritis of the left knee from January 17, 2020 is remanded. In the JMR filed with the Court, the parties to the appeal agreed that the Board erred when it failed to provide an adequate statement of reason or bases for its decision. Specifically, the parties agreed that the Board erred by failing to consider references to the Veteran's 2019 physical therapy, as well as references to physical therapy prior to 2019, and whether further development would therefore be warranted consistent with VA's duty to assist. The parties also noted that the Board should ensure that records contained in VistA were associated with the Veteran's claims file. Consistent with the terms of the JMR, and to ensure fulfillment of VA's statutory duty to assist, the Board will remand the case to the agency of original jurisdiction (AOJ) for additional development; specifically, to develop for any outstanding records of physical therapy and any additional records that may be contained in VistA. It is imperative that all efforts taken to obtain these records be well documented in the claims file so that the Board may make a factual finding concerning the adequacy of the development conducted in the event that such records either do not exist or cannot be obtained. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any non-VA care providersto particularly include any physical therapistswho may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Take action to ensure that all relevant records of the Veteran's VA treatment have been associated with the record, including copies of any records scanned into VistA Imaging. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs (to include obtaining a new examination, if necessary), the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.