Citation Nr: 21021748
Decision Date: 04/13/21	Archive Date: 04/13/21

DOCKET NO. 14-01 610
DATE: April 13, 2021

REMANDED

Entitlement of an initial rating greater than 10 percent for a left knee disorder prior to October 11, 2019, and in excess of 20 percent thereafter, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from March 1988 to March 1992. 

This matter was initially before the Board in September 2017. The Board remanded on these issues to afford the Veteran a new VA examination to assess the current severity of his left knee disability. The matter returned to the Board in December 2020, where it was remanded again for additional development. The Board determined that the October 2019 VA examination was inadequate for rating purposes.

Entitlement of an initial rating greater than 10 percent for a left knee disorder prior to October 11, 2019, and in excess of 20 percent thereafter, is remanded.

While the Board regrets further delay, the matters must be remanded for the AOJ to consider the Veteran’s increased rating claims under both the former and current knee criteria over the entirety of the appeal period. 

VA amended the criteria for rating musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction (AOJ) on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 

In a January 2021 SSOC, the RO denied the Veteran’s increased rating claim for his left knee disability. The Veteran contends that he suffers from instability due to his left knee disorder. See October 2019 VA Examination; April 2020 VA Treatment Record. The Board finds that the change in the regulations may affect the current appeal as there are new rating criteria for patellar instability. 

Therefore, to avoid any prejudice to the Veteran, a remand for consideration of the merits of this matter by the AOJ, in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

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The matters are REMANDED for the following action:

1. Associate with the claims folder updated treatment records.

2. Readjudicate the increased initial rating claims for service-connected left knee disability. 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Adeleke, Tomi

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.