Citation Nr: 21074488
Decision Date: 12/15/21	Archive Date: 12/15/21

DOCKET NO. 17-67 402
DATE: December 15, 2021

REMANDED

The issue of a disability rating of more than 10 percent for impaired flexion from service-connected right knee chondromalacia and degenerative joint disease is remanded.

The issue of a compensable disability rating from September 22, 2016 to June 8, 2021 and of more than 40 percent, thereafter, for impaired extension from service-connected right knee chondromalacia and degenerative joint disease is remanded

The issue of a disability rating of more than 10 percent for service-connected left knee chondromalacia and degenerative joint disease prior to April 15, 2019 is remanded. 

The issue of a disability rating of more than 30 percent prior to June 8, 2021 and of more than 60 percent thereafter for residuals of a total left knee replacement is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1979 to July 1981. 

This matter comes before the Board of Veterans' Appeals (Board) from a January 2017 rating decision from a Department of Veterans Affairs (VA) regional office (RO). 

This matter was most recently remanded for additional development in May 2021. A supplemental statement of the case was issued in August 2021, and the matter has returned to the Board. 

The Veteran testified before the undersigned Veterans' Law Judge in February 2021. A transcript of the hearing has been associated with the electronic claims file.

1. The issue of a disability rating of more than 10 percent for impaired flexion from service-connected right knee chondromalacia and degenerative joint disease is remanded.

2. The issue of a compensable disability rating prior to June 8, 2021 and more than 40 percent, thereafter, for impaired extension from service-connected right knee chondromalacia and degenerative joint disease is remanded

3. The issue of a disability rating of more than 10 percent for service-connected left knee chondromalacia and degenerative joint disease prior to April 15, 2019 is remanded. 

4. The issue of a disability rating of more than of 30 percent prior to June 8, 2021 and of more than 60 percent thereafter for residuals of a total left knee replacement is remanded.

The matters are REMANDED for the following action:

1. BACKGROUND FOR THE RO ADJUDICATOR:

This is a remand under the ruling in Stegall v. West, 11 Vet.App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders).

The Veteran's claims were remanded in May 2021 for additional development. Records obtained during the remand identify additional treatment from his knee surgeon through the "Care in Community" program. No attempt was made to obtain these records. 

It also appears that VA treatment records remain outstanding. There are no treatment records from May 2019 to March 2020 associated with the Veteran's claims folder. Therefore, VA has not satisfied its duty to assist the Veteran and a remand is necessary. 

THE REMAND DIRECTIVES FOLLOW.

2. Ask the Veteran to complete a VA Form 21-4142 for the provider of his knee replacement, Dr. Brett W. Fischer. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile.

3. Obtain the Veteran's outstanding VA treatment records for the period from May 2019 to May 2020 and from May 2021 to present.

(CONTINUED ON THE NEXT PAGE)

4. Thereafter, readjudicate the issues on appeal.  If a determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable period to respond.

 

 

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Reed, Counsel

The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.