Citation Nr: 21026603 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-19 890 DATE: May 3, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent for left knee arthritis (flexion) prior to October 25, 2018; in excess of 30 percent from October 25, 2018 to October 1, 2020; and in excess of 10 percent since October 1, 2020 is remanded. Entitlement to an initial compensable evaluation for left knee arthritis (extension) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1988 to March 1989, from November 1990 to May 1991 and from June 2010 to June 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Jackson, Mississippi Regional Office (RO) of the United States Department of Veterans Affairs (VA), which among other issues, granted service connection for left knee arthritis rated 10 percent disabling based on painful flexion, effective June 6, 2011, the day following separation from service. The Veteran testified at a November 2018 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the file. This matter was previously before the Board, most recently in February 2021, at which time it was remanded for additional development. As discussed in more detail below, the Board finds that there was not substantial compliance with its February 2021 remand order and another remand of this issue is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2019, these issues were remanded by the Board for the issuance of a supplemental statement of the case (SSOC). An SSOC and rating decision were issued in October 2020. In that decision, the RO granted a staged rating for left knee arthritis, assigning a 30 percent rating effective October 25, 2018, and reducing that back to 10 percent disabling effective October 1, 2020. The RO also indicated a separate, noncompensable evaluation for limitation of extension of the left knee arthritis was granted effective October 1, 2020. In February 2021, the Board remanded these issues again after finding that the October 2020 rating decision raised questions of pyramiding under 38 C.F.R. § 4.14 as two ratings appear to be assigned for impaired extension of the left knee from October 2018 to 2020. Additionally, as the RO potentially changed the basis for the initial rating effective October 25, 2018, an effective reduction of the initial rating had been worked. Murray v. Shinseki, 24 Vet. App. 420 (2011). The Board's remand directives required the RO to review the October 2020 rating decision and all the relevant evidence. The RO was directed to take appropriate action to clarify the assigned ratings and diagnostic codes, and, correct the apparent errors identified with respect to pyramiding. The RO issued a supplemental statement of the case (SSOC) in February 2021. The SSOC indicated that the VA examination dated October 1, 2020 "showed a 10 percent evaluation for left knee arthritis (flexion) based upon: Limitation of flexion of 31 to 45 degrees." A review of the file shows that the RO did not take any action to clarify the assigned ratings and diagnostic codes, nor to correct any other errors. On the most recent rating code sheet, dated February 17, 2021, a 30 percent rating for the Veteran's left knee from October 25, 2018 to October 1, 2020 based Codes 5003-5261 which is a rating code associated with limitation of extension of the knee is still reflected. Additionally, the SSOC did not address the Veteran's claims for an increased rating in excess of 10 percent for left knee arthritis (flexion) for the period prior to October 25, 2018, or for the period from October 1, 2020 as was directed by the Board in its remand instructions. In its remand instructions, the Board directed the RO to address all these apparent errors and assign corrected ratings under the appropriate diagnostic code or codes, fully considering all manifestations of the left knee disability to include flexion, extension, and instability for the entirety of the appellate period since June 2011. On remand, these actions must be accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Review the October 2020 rating decision issued during the pendency of the appeal, along with all relevant evidence of record. The reviewing agency of original jurisdiction (AOJ) must take appropriate action to clarify the assigned ratings and diagnostic codes and, if necessary, correct the apparent errors identified above with respect to pyramiding and effective reduction. 2. Following such, if any aspect of the appeal remains denied, issue an SSOC addressing the issues on appeal; the AOJ is reminded that the ratings for all aspects of the service-connected left knee disability, for the entirety of the appellate period since June 2011, are part of the current appeal. After allowing an appropriate time for response from the Veteran, the appeal should be returned to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.