Citation Nr: 21012155 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-00 195 DATE: March 3, 2021 REMANDED 1. Entitlement to a disability rating in excess of 10 percent for right knee arthritis is remanded. 2. Entitlement to a compensable disability rating for the residuals of a right knee partial meniscectomy prior to November 13, 2017, and a rating in excess of 10 percent for the period from November 13, 2017, forward is remanded. REASONS FOR REMAND The Veteran had active service from October 1966 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Board remanded this matter for further evidentiary development. In September 2018, the Board denied the Veteran’s claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted the Parties’ Joint Motion for Remand (JMR), which vacated the September 2018 Board decision. In March 2020 the Board remanded this matter for VA treatment records and a VA examination (VAX). A December 2020 rating decision granted a separate 10 percent rating for right knee status post meniscectomy residuals effective November 13, 2017. The assignment of a separate rating did not constitute a full grant of benefits sought on appeal. As the separate rating is part and parcel to the increased rating claim for right knee. The separate rating was not granted to the date of claim (March 18, 2010). The Veteran has not been granted the maximum benefit allowed under the law from November 13, 2017 as the Veteran had a partial meniscectomy in 1983. See July 2010 VA Examination (VAX). On a claim for an original or an increased rating, the claimant is generally presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in appellate status where a subsequent rating decision awarded a higher rating, but less than the maximum available benefit. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues on appeal have been characterized as shown on the cover page above. 1. Entitlement to a disability rating in excess of 10 percent for right knee arthritis is remanded. 2. Entitlement to a compensable disability rating for the residuals of a right knee partial meniscectomy prior to November 13, 2017, and a rating in excess of 10 percent for the period from November 13, 2017, forward is remanded. The Board regrets further delay, however, upon review of the Veteran’s claim file it appears that the records from 96th Medical Group dated from approximately July 2014 to March 2016 and records from JB San Antonio Military Treatment Facility from February 2013 cited in the November 2017 VAX are not of record. In the September 2019 JMR the parties agreed that the VA must make as many requests as necessary to obtain these outstanding relevant Federal Treatment records on remand. See 38 C.F.R. § 3.159 (c). Under 38 C.F.R. § 3.159 (c)(2), VA will make as many requests as necessary to obtain relevant federal records unless it is determined that the records do not exist or that further attempts to obtain them would be futile. Here, it does not appear that the Agency of Original Jurisdiction (AOJ) made a specific request for these records or that further attempts to obtain these records would be futile. Thus, a remand is necessary to obtain these treatment records. A remand is also necessary for another VAX as the rating criteria for the knee was revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). The October 2020 VAX does not address these regulatory changes. The matters are REMANDED for the following action: 1. Obtain records from 96th Medical Group dated from approximately July 2014 to March 2016 and records from JB San Antonio Military Treatment Facility from February 2013. As set forth in 38 C.F.R. § 3.159 (c) (2), the AOJ must continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. All efforts to obtain these records should be memorialized in the Veteran's VA claims file. If these records are unavailable, a formal finding should be associated with his claims file. Further, if the records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Thereafter, schedule the Veteran for an appropriate VAX to determine the severity of his right knee disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must address whether the Veteran has: a) an unrepaired or failed repair of complete ligament tear causing persistent instability, b) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; c) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair; or d) a diagnosed condition involving the patellofemoral complex with recurrent instability without surgical repair. (Continued on the next page)   The examiner should also address whether the Veteran is prescribed a brace and/or an assistive device (e.g. cane(s), crutch(es), walker). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, Associate 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.