Citation Nr: 21066673 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-13 798 DATE: November 1, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for status post right knee meniscal tear with scar is remanded. Entitlement to an initial rating in excess of 20 percent for right knee instability from September 17, 2019 is remanded. Entitlement to an initial rating in excess of 20 percent for right knee limitation of extension from July 29, 2020 is remanded. Entitlement to an initial rating in excess of 10 percent for right knee limitation of flexion from September 17, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from July 1971 to July 1972 and from June 1976 to June 1983. He also attended the United States Naval Academy from 1972 to 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in August 2018. A transcript of the hearing is of record. Subsequently, in February 2019, the Board remanded the Veteran's increased rating claim for further development. In an October 2019 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a separate 20 percent evaluation for right knee instability, effective September 17, 2019. As this represents only a partial grant of the Veteran's appeal for an increased rating for his right knee disability and the Board considers the separate rating to be part of the increased rating claim under appeal, the Board has included the separate rating for the right knee instability as an issue on appeal. The Board then remanded the appeal in January 2020 for further development. Thereafter, in an August 2020 rating decision, the AOJ increased the Veteran's rating for status post right knee meniscal tear from 10 percent to 20 percent, effective December 8, 2013. The Board notes that the award of the 20 percent evaluation for status post right knee meniscal tear throughout the appeal period under Diagnostic Code 5258 is the maximum rating under Diagnostic Code 5258. However, given the notation in the record that the Veteran continues to plan on having a right knee arthroplasty, the Board has not removed the issue from the cover page due to the impact the surgery could have on rating his right knee disability. See April 2021 Medical Treatment Record Non-Government Facility, at 5. In the August 2020 rating decision, the AOJ also awarded a separate 20 percent evaluation for right knee limitation of extension, effective July 29, 2020, and a separate 10 percent evaluation for right knee limitation of flexion, effective September 17, 2019. As the separate ratings for right knee limitation of extension and flexion represent only a partial grant of the Veteran's appeal for an increased rating for his right knee disability and the Board considers the separate ratings to be part of the increased rating claim under appeal, the Board has added the separate ratings for right knee limitation of extension and flexion as issues on appeal. Thereafter, the Board remanded the appeal in March 2021 for further development. 1. Entitlement to an initial rating in excess of 20 percent for status post right knee meniscal tear is remanded. 2. Entitlement to an initial rating in excess of 20 percent for right knee instability from September 17, 2019 is remanded. 3. Entitlement to an initial rating in excess of 20 percent for right knee limitation of extension from July 29, 2020 is remanded. 4. Entitlement to an initial rating in excess of 10 percent for right knee limitation of flexion from September 17, 2019 is remanded. Initially, following the Board's March 2021 remand, the Veteran submitted a VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA) in June 2021 for records from "NM Orthopedic Surgery Northwestern Med" from July 26, 2018, for records from Dr. L.B. from January 2010 to the present, and for records from Perry Orthopedics from March 2019. Notably, the form is dated April 3, 2011; however, this appears to have been a misprint as many treatment dates listed are for after 2011. A review of the claims file reflects that there are no records from Northwestern Medicine in the claims file. Thus, a remand is required to allow VA to obtain authorization and request these records. Regarding the records from Perry Orthopedics, the Board notes that there are records in the claims file from May 4, 2020. However, the VA Form 21-4142a received in June 2021 for the records from Perry Orthopedics reflects that the Veteran listed the dates of treatment as March 2019. Additionally, an earlier July 2020 VA Form 21-4142a listed treatment dates from May 4, 2020 to current. Thus, a remand is required to allow VA to obtain authorization and request the records from March 2019 to current to ensure that any outstanding identified records during this time period are obtained. Regarding the records from Dr. L.B., the Board notes that there are multiple records from Dr. L.B. in the claims file, including the most recent letter from Dr. L.B. added to the claims file in June 2021. However, additional records from Dr. L.B. based on the VA Form 21-4142a submitted in June 2021 reflecting treatment to the present were not requested. Therefore, upon remand, an attempt should be made to obtain any additional records from Dr. L.B. In addition, the Board notes that a remand is required as there has not been substantial compliance with the mandates of the March 2021 remand order. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In March 2021, the Board remanded the appeal to the AOJ for an additional VA examination regarding the right knee claim. As part of the examination request, the Board requested the VA examiner to "provide a retrospective medical opinion pertaining to the severity and manifestations of the Veteran's right knee disability from the date of the March 2015 VA examination to the September 2019 VA examination." Unfortunately, the Board finds that there was not substantial compliance with the remand directive as the June 2021 VA examiner's retrospective opinion does not fully address the question posed. Instead, the examiner listed how the Veteran's right knee flexion decreased from 125 degrees to 90 degrees from March 2015 to September 2019. The examiner did not provide a complete opinion as to the severity and manifestations of the Veteran's right knee disability. As such, an additional remand is necessary to comply with the March 2021 Board remand. The matters are REMANDED for the following actions: 1. Attempt to obtain private treatment records based on the VA Form 21-4142a received in June 2021 for Northwestern Medicine for dates of treatment to include July 26, 2018, from Perry Orthopedics for dates of treatment to include March 2019 to current, and for any updated records from Dr. L.B. If unable to obtain these records due to the misprinted date on the VA Form 21-4142a or for any other reason, then request that the Veteran submit a fully completed and signed VA Form 21-4142, Authorization and Consent to Release Information to VA, for each health care provider from whom he would like VA to obtain records, to include from Northwestern Medicine for dates of treatment to include July 26, 2018, from Perry Orthopedics for dates of treatment to include March 2019 to current, and for any updated records from Dr. L.B. Inform him that the VA Form 21-4142 submitted in June 2021 is outdated based on the date on the form being April 3, 2011. In addition, inform the Veteran that the VA Form 21-4142 submitted in June 2021 cannot be used to obtain the records and that in order for VA to obtain the records he must submit a new VA Form 21-4142 for records from Northwestern Medicine, Perry Orthopedics, and Dr. L.B. Based on the Veteran's response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Obtain and associate with the Veteran's electronic record any outstanding VA treatment records. 3. After completing the development requested in items 1 and 2, schedule the Veteran for an appropriate VA examination to evaluate the severity of the Veteran's right knee condition. The entire claims file should be made available to the examiner in conjunction with this request. As appropriate, all testing deemed necessary to rate knee conditions under the criteria of the rating schedule, including under the amended regulations effective February 7, 2021, must be conducted and the results reported in detail, including whether a medical provider has prescribed the Veteran an assistive device(s). After reviewing the claims file and interviewing the Veteran, the examiner should address the following: Provide an opinion based on the Veteran's statements at the examination and a review of the claims file as to the severity and manifestations of the Veteran's right knee disability from the date of the March 2015 VA examination to the September 2019 VA examination, in particular addressing, if possible, the approximate onset of right knee instability. The Board notes that the March 2015 VA examination showed no instability and the September 2019 VA examination showed instability in the right knee. The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.