Citation Nr: 21026060
Decision Date: 04/29/21	Archive Date: 04/29/21

DOCKET NO. 05-31 922
DATE: April 29, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Air Force form February 1998 to September 2002.

This matter comes before the Board, most recently, from an August 2017 Board remand. This followed a November 2015 Memorandum Decision in which the Court of Appeals for Veteran Claims (Court) remanded the claim for further development, to include an examination which complies with the examination requirements as set forth in Correia v. McDonald, 28 Vet. App. 158 (2016). The matter returned to the Board in May 2020, where it was again remanded for further development, to include an examination which complies with the examination requirements as set forth in Sharp v. Shulkin, 29 Vet. App. 26 (2017).

Entitlement to a rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome is remanded.

While the Board regrets further delay, the matter must be remanded for the AOJ to consider the Veteran’s increased rating claim 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 right knee patellofemoral pain syndrome. Throughout the appeal, the Veteran reported instability due to his right knee disorder and the use of cane, brace, and crutches for stability. See January 2021 VA Examination; January 2008 Hearing Transcript; July 2005 Treatment Record; June 2005 VA Treatment Record. Additionally, the January 2021 VA examination did not perform a stability test on the Veteran due to his pain. 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). 

The matters are REMANDED for the following action:

1. Associate with the claims folder updated VA treatment records.

2. Ensure the record includes examination sufficient to consider the amended the criteria for rating musculoskeletal disabilities effective from February 7, 2021.

3. Readjudicate the increased rating claim for service-connected right knee patellofemoral pain syndrome.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Adeleke, T.

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.