Citation Nr: 21028497
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 15-26 179
DATE: May 11, 2021

REMANDED

Entitlement to a separate compensable disability rating for the left tibia (aside from knee limitations).

Entitlement to a separate compensable disability rating for the right tibia (aside from knee limitations).

Entitlement to a disability rating exceeding 10 percent for a left knee disability.

Entitlement to a disability rating exceeding 10 percent for a right knee disability.

Entitlement to an initial compensable disability rating for gastroesophageal reflux disease (GERD).

Entitlement to a disability rating exceeding 10 percent for GERD beginning November 30, 2015.

REASONS FOR REMAND

The Veteran served honorably on active duty from March 1981 to May 1988.

This appeal comes to the Board from a February 2014 rating decision.  The Board remanded these matters in August 2018 for additional development.

The record does not contain sufficient information to fully adjudicate the Veteran's appeals and contentions. In an April 2021 Written Brief Presentation, the Veteran's representative stated that the Veteran's disabilities have worsened since his last VA examination and noted that the Veteran has had flare-ups of his right and left tibia stress fracture disabilities.  In a June 2020 letter, the Veteran raised a contention that he should be rated separately for his knee impairment, and that he should be given separate ratings for arthritis involving his knees.  The Veteran also requested that the Board recharacterize his service-connected disability by removing "with knee involvement" from the named issue.

The Board notes that the Veteran was initially service connected for bilateral tibial stress fractures, but that an examination undergone during the assignment of the initial rating in 1988 revealed that many of his reported impairments stemmed from his knees.  Consequently, the initial disability was expanded in scope and recharacterized as bilateral tibia stress fractures with knee involvement.  See October 1988 and February 1989 Rating Decisions.  Both the knees and the tibias are currently rated under criteria for limitation of motion of the knees.  The Board has recharacterized the issues on appeal to ensure that VA develops the issues of entitlement to separate compensable ratings for the bilateral tibias and bilateral knees. 

VA should obtain new examinations to ensure the record is contemporaneous and fully addresses the scope of the impairments attributable to the disabilities on appeal.

The Board REMANDS for the following actions:

1. VA should request that the Veteran identify outstanding records.  VA should make reasonable efforts to obtain any identified records.

2. After adding any records to the file, VA should afford the Veteran current examinations of his knees, tibias, and GERD.  The examiners should use the most up-to-date Disability Benefits Questionnaires.  VA should ensure the examinations are sufficient to rate the severity of the knee and tibia disabilities under the older rating criteria as well as revised rating criteria in effect as of February 7, 2021 to the extent it supports a more favorable rating.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a).

Regarding the Veteran's knees, the examiner should clarify whether the Veteran has had arthritis from July 2012 to the present.  The examiner should also identify which symptoms or functional impairments are attributable to the Veteran's knees versus his tibias (shin splints).  If the examiner is unable to distinguish between symptoms and functional impairments attributable to the tibias versus to the knees, the examiner should explain why.

 

 

Marissa Caylor

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael Duffy, 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.