Citation Nr: 21067396 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 12-41 830A DATE: November 4, 2021 REMANDED Entitlement to an increased rating for status post arthroscopic chondroplasty with osteoarthritis of the right knee (right knee disability), currently rated as 10 percent disabling under Diagnostic Code 5260 and 20 percent disabling under Diagnostic Code 5257, to include whether separate rating(s) are warranted for a semilunar cartilage condition, is remanded. REASONS FOR REMAND The Veteran had active service from April 1990 to April 1994. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in January 2017 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In May 2017, the Board remanded this claim for additional development. The Board notes this appeal also included entitlement to a temporary total disability rating based on the need for convalescence for a right knee disability and entitlement to a temporary total disability rating based on the need for convalescence for a left knee disability; however, these issues were granted in a January 2019 rating decision, and as such, are no longer on appeal. The issues of entitlement to a rating higher than 20 percent for recurrent dislocation of the left knee, entitlement to a rating higher than 10 percent for arthritis due to limitation of extension of the left knee, and entitlement to an effective date earlier than August 28, 2007 for the grant of service connection for arthritis due to limitation of extension of the left knee, were the subject of a Board Remand in November 2018 and May 2021 (jurisdiction over which lies with another Veterans Law Judge). Also, as noted in the prior remand, the Board recognizes the Report of General Information in June 2019 in which it is noted that the Veteran requests a claim for a total disability rating based on individual unemployability to be added. In light of arguments set forth in a February 2017 statement in response to the Board's May 2016 decision and development ordered (e.g., USPS disability retirement records from OPM) by the Board in Remands dated in March 2017 and November 2018, this matter is beyond the scope of this appeal addressed herein and remains for consideration in connection with the other pending appeal. In an August 2019 decision, the Board denied the issue on appeal. The Veteran appealed the August 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Remand (JMR), which vacated the August 2019 Board decision and remanded the issue of entitlement to a rating higher than 10 percent for the right knee to the Board. In August 2020 and May 2021, the Board remanded this claim for additional development. Entitlement to an increased rating for a right knee disability, currently rated as 10 percent disabling under Diagnostic Code 5260 and 20 percent disabling under Diagnostic Code 5257, to include whether separate rating(s) are warranted for a semilunar cartilage condition. The Veteran seeks entitlement to an increased rating for his right knee disability. Service connection for a right knee disability was granted in a June 2007 rating decision, at which time a 10 percent rating was assigned, effective December 2004. A claim for an increased rating was received in October 2008. The Veteran's right knee disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260 for loss of flexion due to arthritis pain for the entire period on appeal. The Veteran also has a separate 20 percent rating under Diagnostic Code 5257 for instability, effective January 28, 2012. The April 2020 JMR noted that the Board failed to consider evidence that the Veteran had a previous semilunar cartilage surgery, and that VA examiners indicated the Veteran had a meniscal tear. The Board notes that the medical evidence confirms the Veteran had at least 3 surgeries of the right knee, and several VA examinations, including the most recent VA examination in May 2021, confirmed that the Veteran has a meniscus/semilunar cartilage condition. Additionally, in the May 2021 Board remand, it was noted that the during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The RO was instructed to issue a new supplemental statement of the case that provided the Veteran with notice of the new musculoskeletal rating criteria, considered new medical evidence added to the file, and to adjudicate the claim considering the new musculoskeletal criteria, as applicable. See 38 C.F.R. § 19.31; Bernard v. Brown, 4 Vet. App. 384, 393 (1993). On remand, the RO issued a supplemental statement of the case in August 2021; however, as the Veteran's representative noted in an October 2021 statement, the RO failed to advise the Veteran of the recent changes in the rating schedule for musculoskeletal disabilities. Furthermore, the supplemental statement of the case indicates that only Diagnostic Code 5260 was applied and no additional Diagnostic Codes pertaining to the knee were discussed or applied, including whether the Veteran is entitled to a separate rating for a meniscal condition. In an October 2021 statement, the Veteran's representative argues that a remand is necessary for the RO to comply with the Board directives of May 2021 as well as to complete the development discussed in the April 2020 JMR. The Board notes that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the RO must issue a supplemental statement of the case that provides the Veteran with notice of the new musculoskeletal rating criteria. The RO must also assess the claim under all applicable diagnostic codes to determine if any additional separate compensable disability ratings are warranted, to include, but not limited to, whether a separate rating is warranted for a meniscal condition. Throughout the course of this appeal, the Veteran has been afforded approximately 10 VA examinations, with the most recent VA examination conducted in May 2021. On remand, the Board notes that there is no need for an additional VA examination of the right knee. The matters are REMANDED for the following action: 1. Provide the Veteran with notice of the new musculoskeletal Diagnostic Codes for rating the knee. 2. Based on the evidence of record, issue a SSOC that adjudicates the claim for entitlement to a rating higher than 10 percent for status post arthroscopic chondroplasty with osteoarthritis of the right knee considering the new criteria, as applicable. *The RO must assess the claim under all applicable diagnostic codes for the knee (Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, and 5263) to determine if any additional separate compensable disability ratings are warranted for the right knee, to include, but not limited to, whether a separate rating is warranted for a right knee meniscal condition. *There is no need for an additional VA examination of the right knee. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.