Citation Nr: 21016029 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-09 352 DATE: March 19, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for right knee medial meniscus tear, status post partial knee replacement, is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1988 to January 1996. This appeal arises from an August 2014 rating decision of a VA Regional Office (RO) and was remanded by the Board of Veterans’ Appeals (Board) in June 2018 and December 2020 for additional development. In the August 2014 decision, the RO assigned a temporary 100 percent evaluation effective February 24, 2014, based on surgical treatment necessitating convalescence for the right knee medial meniscus tear; an evaluation of 10 percent was assigned from April 1, 2014. In that decision, the RO also granted service connection for left knee patellofemoral pain syndrome and assigned a noncompensable (zero percent) rating effective February 24, 2014. During the pendency of the appeal, the RO issued an April 2020 rating decision that changed the effective date of the 100 percent temporary evaluation to February 25, 2014, for the right knee medial meniscus tear and increased the 10 percent rating to 30 percent effective April 1, 2015, and also increased the noncompensable rating for the left knee disability to 10 percent effective February 24, 2014. These increased ratings constitute partial grants of the benefits sought on appeal; therefore, the issues remain on appeal for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). 1. Entitlement to a disability rating in excess of 30 percent for right knee medial meniscus tear, status post partial knee replacement, is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. In the June 2018 remand, the Board noted that the record shows the Veteran underwent a June 2014 knee examination, but the “report is missing from the evidentiary record.” See, e.g., February 2015 VA Form 9 (referencing a June 2014 report completed by Dr. Carter); June 2, 2014, CAPRI Note (showing “Vista Imaging for scanned image of this Non VA C&P document”). Indeed, the June 2014 report does not appear to be currently associated with the claims file, despite notations that such report should be obtained. See March 14, 2019, and April 24, 2019, VA 10-1731 Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action (noting the missing June 2014 examination report). Thus, the RO should make reasonable efforts to ensure the record is complete, to include any Vista scanned records noted in the CAPRI records but not actually found in the claims file, to include the June 2014 report by Dr. Carter. See Stegall v. West, 11 Vet. App. 268 (1998); see also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). In the December 2020 remand, the Board specified that the “Veteran was treated for his knee conditions primarily through private medical providers,” and thus, the RO should attempt to obtain “all private medical treatment records from March 2014.” However, since the December 2020 remand, it does not appear that such attempts were made; therefore, the RO should attempt to obtain the previously requested private treatment records. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, while the Veteran was afforded a January 2021 VA examination, the Board notes that effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. 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) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, while on remand, the RO should obtain an addendum opinion for the knee disabilities and schedule the Veteran for an examination if deemed necessary, to account for these recent changes. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from June 2019 to the present. Make reasonable efforts to ensure the record is complete, to include any Vista scanned records noted in the CAPRI records but not actually found in the claims file such as the June 2, 2014, CAPRI note showing a Vista scanned image of a “Non VA C&P document” and indicated by the Veteran to have been completed by Dr. Carter. 2. After securing any necessary authorization, obtain any private treatment records dated since March 2014 that the Veteran may identify as relevant to his claims. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Ask the appropriate examiner (for knees) to review the Veteran’s claims file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should describe the severity of the Veteran's service-connected right and left knee disabilities. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). 4. After the above development and any other development deemed necessary is completed, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.