Citation Nr: 21010478
Decision Date: 02/24/21	Archive Date: 02/24/21

DOCKET NO. 09-00 061A
DATE: February 24, 2021

REMANDED

The claim for an initial rating in excess of 10 percent for right knee chondromalacia patella prior to September 3, 2009, is remanded. 

The claim for an initial rating in excess of 20 percent for right knee chondromalacia patella for the period beginning September 3, 2009, is remanded. 

The claim for an initial rating in excess of 20 percent for left knee chondromalacia patella is remanded.

The claim for an initial rating in excess of 10 percent for right knee osteoarthritis with pain on motion is remanded. 

The claim for an initial rating in excess of 10 percent for painful motion of the left knee is remanded.  

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from February 1996 to May 2005.  

 

This case has been remanded by the Board of Veterans’ Appeals (Board) on multiple occasions, most recently in March 2020.  

The Board is required to ensure compliance with the instructions of it remands.  Stegall v. West, 11 Vet. App. 268 (1998).  Unfortunately, the Agency of Original Jurisdiction (AOJ) has again failed, as requested by three Board remands, to obtain the range of motion findings required by Correia v. McDonald, 28 Vet. App. 158 (2016).  As such, and because the most recent VA examination of the knees conducted in September 2020 did demonstrate objective evidence of pain on passive motion and non-weight bearing in each knee, this case regrettably must be remanded again to obtain the range of motion findings required by Correia to ensure compliance with the Board remand instructions.  Stegall, supra.  This remand will also afford the AOJ the opportunity to conduct the initial consideration of the recent revisions to DC 5257 made effective from February 7, 2021.  85 FR 76464, Nov. 30, 2021. 

For the reasons set forth above, this case is REMANDED for the following action:

1. Afford the Veteran a VA examination of the knees that contains the ranges of motion in each knee on both active and passive motion and on weight-bearing and non-weight-bearing.  If this cannot be accomplished, the examiner should state why such is the case.  

 

2. Thereafter, conduct the appropriate processing and adjudication of the claims that have been remanded, to include with consideration of the recent revisions to DC 5257 made effective from February 7, 2021.  The case must not be returned to the Board until the development requested in the preceding paragraph is, to the extent possible, substantially accomplished.  

 

 

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Andrew Ahlberg, 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.