Citation Nr: 21028419 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-32 611 DATE: May 11, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to October 21, 2019 and in excess of 20 percent from that date for the service-connected chondromalacia of the left patella with meniscal tear of the left knee is remanded. Entitlement to a disability rating in excess of 10 percent prior to October 21, 2019 and in excess of 20 percent from that date for service-connected chondromalacia of the right patella with meniscal tear of the right knee is remanded. Entitlement to a disability rating in excess of 10 percent for right knee instability is remanded. REASONS FOR REMAND The Veteran had periods of active service from November 1981 to November 1985 and from March 1986 to November 1989. The current matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision. These matters were previously before the Board in November 2018. All issues are remanded After these matters were remanded by the Board in November 2018, the Veteran submitted a supplemental claim seeking increased ratings for his knees (and other disabilities) under the provisions of the Appeals Modernization Act (AMA) resulting in additional evidence relevant to his knees being developed including a March 2021 Compensation and Pension (C&P) examination of his knees. VA regulations require that this evidence be reviewed by the agency of original jurisdiction (AOJ) unless the Veteran provides a waiver of this procedural right. 38 U.S.C. § 7105; 38 C.F.R. § 20.1305(c). However, it appears that some of this evidence requires a remand to make sure that the evidence is, in fact, accurate. Specifically, the March 2021 C&P examination report indicates that the Veteran does not require a brace prescribed by physicians. Supporting this position, the examiner appears to cite a March 12, 2021, communication from the Veteran's VA physician indicating that a brace was not recommended. However, in context, it appears that this communication is in response to a request from the Veteran regarding a shoulder brace sent 8 days earlier on March 4, 2021. Thus, in context it may be that this communication was not regarding a knee brace (or braces) at all. This seems especially likely in the context of a February 2021 note indicating that the Veteran was being evaluated for bilateral knee braces that were ordered by a VA physician for the Veteran. Additionally, a March 2015 VA treatment record appears to indicate that the Veteran was prescribed braces (or at least that VA personnel ordered them) for the Veteran's knees at that time. In April 2021, a VA clinician opined regarding the functional impact of the Veteran's knees apparently relying on the recent review of the Veteran's treatment records, including the March 2021 examination report. Therefore, it appears the April 2021 opinion was based in part on what appears to be a misunderstanding of the evidence. Consequently, even if the Board were to seek and the Veteran were to grant a waiver of AOJ consideration of this evidence, a remand would be required to ensure that the recent opinion was based on the correct predicate facts. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, a remand is required in any event. Accordingly, these matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the functional impact of the Veteran's knee conditions in light of the March 2015 and February 2021 VA treatment records that indicate the Veteran has been prescribed knee braces. 2. Once the above development, and any other development that may be indicated as a result, has been completed, readjudicate the claims on appeal. If the claims are not granted to the Veteran's satisfaction, provide the Veteran and his representative with an appropriate supplemental statement of the case (SSOC) and the requisite time to respond. Then, if the matter is otherwise in order, return the matter to the Board for additional appellate review. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.