Citation Nr: 21028639 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-44 127 DATE: May 11, 2021 REMANDED Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to a disability rating in excess of 10 percent for ligamentous derangement of the left knee rated under Diagnostic Code 5260 is remanded. Entitlement to an initial disability rating in excess of 10 percent for patellar subluxation of the left knee rated under Diagnostic Code 5257 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1994 to November 1994. In August 2018, the Board of Veterans' Appeal (Board) remanded the appeal. All the Issues on Appeal Although the Board regrets the additional delay that will occur before the Veteran receives a decision on her appeal, it finds that a remand is required. In August 2018, the Board remanded the Veteran's claims seeking a disability rating in excess of 10 percent for ligamentous derangement of the left knee, an initial disability rating in excess of 10 percent for patellar subluxation of the left knee, service connection for a left hip disorder, service connection for a right knee disorder, and TDIU. The August 2018 Board remand instructed the AOJ to, among other things, notify the Veteran if treatment records from Dr. Tai Chung could not be obtained, by providing a notice that (i) identified the specific records the AOJ was unable to obtain, (ii) briefly explained the efforts that the AOJ undertook to obtain those records, (iii) described any further action undertaken by the AOJ with respect to the claim, and (iv) informed the Veteran that she was ultimately responsible for providing the evidence. The August 2018 Board remand also instructed the AOJ that the Veteran should be given an opportunity to respond to such notification. Additionally, the August 2018 Board remand instructed the AOJ to send the Veteran a letter informing her that her treatment records at South Butler Medical Service and Tri County Medical could not be obtained and that the letter should (i) identify the specific treatment records that the AOJ was unable to obtain, (ii) briefly explain the efforts undertaken by the AOJ to obtain those records, (iii) describe any further action to be taken by the AOJ with respect to the claim, and (iv) inform the Veteran that she was ultimately responsible for providing the evidence. The August 2018 Board remand instructed the AOJ that the Veteran should be given the opportunity to respond to such letter. In this case, the Veteran was not provided with notice informing her that her treatment records from Dr. Tai Chung, South Butler Medical Service, and Tri County Medical were not obtained, and she was not given an opportunity to respond to the failure to obtain such records. Accordingly, because the instructions set forth in the August 2018 Board remand have not been complied with, a remand is required for compliance with the Board's prior remand instructions. See 38 C.F.R. § 19.9; Stegall v. West, 11 Vet. App. 268 (1998). As to the claims for increased ratings for the left knee disorders, since the Board last Remanded the appeal VA amended some of its' criteria for rating musculoskeletal disabilities, including the knee 38 C.F.R. § 4.71a, effective February 7, 2012. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Therefore, the Board finds that a Remand is also required to provide the Veteran with a new VA examination that considers this new rating criteria. See 38 U.S.C. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that considers the records of prior examinations and treatment). The Board also finds that a Remand is required for the AOJ to provide the appellant with a supplemental statement of the case (SSOC) which provide him with notice of the new musculoskeletal rating criteria and adjudicates the rating claims applying these criteria. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). In this regard, when again rating the Veteran's disability the RO should be mindful of the fact that it may only apply the new rating criteria for the knee from the effective date of the change in the Diagnostic Code-February 7, 2012. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. It appears that the AOJ sent authorization to Dr. Tai Chung to release the Veteran's treatment records to VA for consideration in this case, but that Dr. Tai Chung never sent such treatment records or that such treatment records do not exist. However, it does not appear that the Veteran was provided with notice that VA did not obtain such treatment records or an opportunity to respond. Accordingly, the AOJ should send correspondence to the Veteran and her representative, notifying them that Dr. Tai Chung did not submit her treatment records to VA. The Veteran should also be provided with an opportunity to respond to the fact that such treatment records were not obtained, and she should be informed that it is ultimately her duty to submit her records of treatment by Dr. Tai Chung. 2. It does not appear that the AOJ notified the Veteran that her treatment records from South Butler Medical Services and Tri County Medical were not obtained. Accordingly, the AOJ should send correspondence to the Veteran and her representative, notifying them that her treatment records from South Butler Medical Services and Tri County Medical were not obtained. The Veteran should also be provided with an opportunity to respond to the fact that such treatment records were not obtained, and she should be informed that it is ultimately her duty to submit her records of treatment by physicians at South Butler Medical Services and Tri County Medical. 3. Obtain and associate with the claims file any outstanding VA treatment records (if any). 4. After obtaining all needed authorizations from the Veteran, associate with the claims file any other outstanding private treatment records (if any). 5. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of her left knee disorder. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a) The examiner should identify all left knee pathology found to be present. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing based on the evidence of record. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. If it is, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If it is not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited right knee forward flexion and backward extension caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot provide the range of motion estimate during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (e) The examiner should also state the nature, extent, and severity of any left knee instability. In providing the opinions, the examiner should consider the Veteran's competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. After undertaking the above development, the AOJ should issue the Veteran a SSOC that, among other things, adjudicates and provides the appellant with notice of the new musculoskeletal Diagnostic Codes for rating the knee. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, 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.