Citation Nr: 21023595 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 10-46 486 DATE: April 21, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella is remanded. Entitlement to a rating in excess of 10 percent for left knee chondromalacia patella is remanded. Entitlement to a rating in excess of 10 percent for right knee lateral and medial instability is remanded. Entitlement to a rating in excess of 10 percent for left knee lateral and medial instability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1985 to August 2005. The Veteran appealed a May 2009 rating decision by the Agency of Original Jurisdiction (AOJ). In September 2016, December 2018, and December 2020, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The December 2020 Board decision remanded the issues to obtain outstanding treatment records and to issue a new supplemental statement of the case (SSOC). Additional VA treatment records were obtained. However, no private treatment records were obtained prior to the issuance of the February 2021 SSOC and it does not appear that Veteran returned the VA Form 21-4142 that was supplied to him with the agency of original jurisdiction’s (AOJ’s) December 2020 development letter. However, following the issuance of the February 2021 SSOC, the AOJ sent the Veteran a letter noting that the February 2021 SSOC was sent “in error” and offering an additional opportunity to submit a release for private medical records. See March 30, 2021 development letter. The case was returned to the Board before the Veteran had an opportunity to respond. Given this procedural background, the Board must again remand to allow the Veteran the opportunity to identify and/or submit private treatment records. The Board also notes that during this appeal, the Department of Veterans Affairs (VA) promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the Veteran’s bilateral knee conditions may warrant a higher rating based on the new regulations. Specifically, higher ratings for knee instability require a prescription of an assistive device and/or diagnosis of patellar instability. Prior VA examinations of record do not indicate these new criteria. Therefore, based on these new regulations, the Veteran should be afforded a new VA examination that addresses these new criteria. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral knee conditions that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination of the current severity of his bilateral knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran’s condition and discuss the effect of the Veteran’s condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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 is to also note whether the Veteran is prescribed an assistive device or is diagnosed with patellar instability. 3. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a SSOC, and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.