Citation Nr: 21065356
Decision Date: 10/25/21	Archive Date: 10/25/21

DOCKET NO. 10-32 012A
DATE: October 25, 2021

REMANDED

Entitlement to an initial rating higher than 10 percent for left knee strain with shin splints is remanded.

Entitlement to an initial compensable rating for right knee strain with shin splints prior to January 10, 2017, and higher than 10 percent, thereafter, is remanded.

REASONS FOR REMAND

On the most recent review of this appeal, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. See 04/04/2020 BVA Decision. The AOJ endeavored to comply with the remand directives, but the Board finds there was less than substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

1. Entitlement to an initial rating higher than 10 percent for left knee strain with shin splints is remanded.

The AOJ arranged an examination of the Veteran's knees as directed in the 2020 remand. See 06/24/2021 C&P Exam, 2nd Entry). Based on the results of the examination, the AOJ continued the 10 percent ratings under the limitation of motion rating criteria. See 06/29/2021 SSOC. The Board remand, however, noted the revised Musculoskeletal Rating Criteria, effective in February 2021, and directed the examiner to address whether the Veteran's knees manifest with medial tibial stress syndrome (MTSS) and to what extent. See 38 C.F.R. § 4.71a, Diagnostic Code 5262 (effective Feb. 7, 2021). The examination report reflects that the examiner indicated that the presence of MTSS in both knees that has been treated for less than 12 months. See 06/24/2021 C&P Exam, 2nd Entry, P. 14-15.

Under the revised criteria, MTSS with treatment of less than 12 months is rated noncompensable. 38 C.F.R. § 4.71a, DC 5162. The fact that a disability or symptom is rated noncompensable has no bearing on whether it should be service connected. The AOJ did not address that finding of the June 2021 examination. The Board notes that the AOJ granted service connection and assigned separate ratings for subluxation pathology under the revised 38 C.F.R. § 4.71a, DC 5257. See 07/29/2021 Rating Decision.

As concerns the revised rating criteria, the Board notes that the AOJ did not include notice of the revised Musculoskeletal Rating Criteria in the June 2021 SSOC nor was an SSOC issued after issuance of the July 2021 rating decision. Referencing the revised diagnostic code does not satisfy the notice requirement. See 38 C.F.R. § 19.31.

2. Entitlement to an initial compensable rating for right knee strain with shin splints prior to January 10, 2017, and higher than 10 percent, thereafter, is remanded.

For the above reasons, this appeal must also be remanded. 

The matters are REMANDED for the following action:

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1. The AOJ shall review the examination findings of MTSS of each knee noted in the June 2021 VA examination report and take appropriate action.

2. After the above is complete, issue the Veteran an SSOC that includes notice of the revised Musculoskeletal Rating Criteria and any other information deemed appropriate.

 

 

M. Caylor

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. T. Snyder

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.