Citation Nr: 21077485
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 12-32 041
DATE: December 29, 2021

REMANDED

Entitlement to a rating in excess of 20 percent for status-post right knee surgical repair of internal derangement is remanded.

Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Air Force from January 1967to December 1973.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO).

In June 2021, this matter was last before the Board, at which time it was remanded for further development.  Unfortunately, there has not been substantial compliance with previous remand directives and corrective action is required.  Stegall v. West, 11 Vet. App. 268 (1998).

In June 2021, the Board remanded this matter to afford the Veteran a VA examination to ascertain the severity of his service-connected right knee disabilities.  He was afforded a VA examination in October 2021.  

Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one."  Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)).  Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim.  Douglas v. Shinseki, 23 Vet. App. 19 (2009).

Upon review of the October 2021 examination report, the Board finds that it is inadequate to decide the current claims.  While the examiner noted that the Veteran had a complete ligament tear that was repaired the examiner failed to identify whether the ligament tear had been successfully repaired.  Under amended 38 C.F.R. § 4.71a, Diagnostic Code 5257 whether a complete ligament tear has been successfully repaired is a factor for consideration in awarding an increased evaluation.  Without this information, the Board cannot make an informed decision.  Accordingly, the examination report is returned.  38 C.F.R. § 4.2.

The matters are REMANDED for the following action:

1. Obtain an addendum to the October 2021 VA orthopedic examination to evaluate the severity of the Veteran's right knee disabilities.

With regard to Diagnostic Code 5257, the examiner should state: a) the extent of any sprain or ligament tear (and repair thereof, including whether any repair was a success or failure), b) the use of assistive devices (e.g., a cane, crutches, or a walker), c) the need for bracing for ambulation, and d) the extent and degree of any current instability.

With regard to Diagnostic Code 5262, and medial tibial stress syndrome/shin splints, the examiner should explain: 1) the extent and duration of treatment; and 2) responsiveness to surgery, shoe orthotics, or other conservative treatment.

The examiner must complete rationales for all opinions and conclusions reached.

2. After the above development, and any other development deemed necessary, readjudicate the claims.

 

 

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Joseph R. Keselyak, 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.