Citation Nr: 21029217 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-26 220 DATE: May 12, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for the service-connected right knee strain is remanded. Entitlement to an initial rating in excess of 10 percent for the service-connected instability and recurrent patellar dislocation of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2005 to November 2007. This current matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of those proceedings has been associated with the claims file. In September 2019 and January 2021, the Board remanded these issues remaining on appeal for further evidentiary development. Following completion of the actions most recently requested in January 2021, this appeal has been returned to the Board. Initial rating in excess of 10 percent for right knee strain Initial rating in excess of 10 percent for instability and recurrent patellar dislocation of the right knee In an initial remand in September 2019, the Board remanded the Veteran's claim for an increased rating to obtain an updated VA examination that included range of motion testing in active and passive range of motion, as well as on weight-bearing and nonweight-bearing, in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). In January 2021, the Board again remanded these increased ratings claims to obtain pertinent private medical records, including the private records referenced during a March 2020 VA treatment visit. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Pursuant to the September 2019 Board remand, the Veteran was accorded an examination in July 2020. The examiner indicated diagnoses of a meniscal tear and strain of the Veteran's right knee. In responding to the Correia questions, the examiner indicated that the Veteran's passive range of motion was the same as his active range of motion. The examiner noted that the Veteran had objective evidence of pain with weight-bearing and nonweight-bearing but did not provide range of motion measurements for either of these conditions. The Board finds that this amounts to only a cursory consideration of Correia and that such renders the examination inadequate for rating purposes. See Stegall, 11 Vet. App. at 271. Additionally, while the July 2020 examiner addressed some symptoms of the Veteran's right knee instability, the examination report does not contain all information required to assess the severity of this disability under the appropriate diagnostic code. Of particular significance in this regard, the Board points out that changes were very recently made to the diagnostic codes that evaluate impairment resulting from knee disabilities. See, e.g., Schedule for Rating Disabilities: Musculoskeletal System & Muscle Injuries, 85 Fed. Reg. 76453, 76463 (11/30/20) (for example, to be codified at 38 C.F.R. § 4.71a, DC 5257). These changes became effective February 7, 2021. On remand, therefore, the nature and severity of the Veteran's right knee instability and recurrent patellar dislocation should be adequately assessed, and the examination obtained should be compliant with the requirements set out in Correia and the new appropriate diagnostic codes. Related to the request for private treatment records outlined in the January 2021 Board remand, the Board acknowledges that one letter was sent to the Veteran to obtain authorization for any private treatment records in January 2021. The letter made no mention of the Board's remand or why authorization for these records was being requested. It does not appear that the RO made more than one attempt to obtain authorization from the Veteran, and it is unclear whether the Veteran understood the importance of responding to the request. As such, the Board finds that there has not been substantial compliance with the January 2021 Board remand directives, and a remand is warranted for corrective action. See Stegall, 11 Vet. App. at 271. On remand, another attempt should be made to request prior authorizations from the Veteran to allow VA to obtain private treatment records on his behalf. In this regard, the Board points out that the duty to assist is not a one-way street and that the Veteran has an obligation to cooperate with VA in ensuring that duty is satisfied. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Accordingly, these matters are REMANDED for the following actions: 1. Identify and obtain any outstanding private treatment records and associate them with the claims file. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Then, schedule the Veteran for a VA examination to determine the current severity of his service-connected right knee strain and service-connected instability and recurrent patellar dislocation of the right knee. The entire claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished. All clinical findings found on examination to be associated with these disabilities must be reported in detail, to include, but not limited to, any limitation of motion of the Veteran's right knee and the symptomatology required for assessing the Veteran's right knee instability and recurrent patellar dislocation under the appropriate diagnostic criteria. The examiner should test the range of motion and pain in the Veteran's right knee in active and passive motion and in weight-bearing and nonweight-bearing and should provide the range of motion measurements for such testing using a goniometer. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and after repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of the pain, the examiner must opine as to whether there would be additional limits on functional ability during flare-ups. All loses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer any such opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate informationi.e. frequency, duration, characteristics, severity, or functional lossregarding the Veteran's flare-ups by alternative means. The examiner is advised that the criteria of Diagnostic Code 5257 were amended, effective February 7, 2021. The examiner must provide a complete examination of the Veteran's right knee in accordance with both the old and new regulations. With regard to the new criteria: (a.) Does the Veteran present with recurrent subluxation or lateral instability, as follows: a. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; or b. One of the following: i. Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or ii. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation); or iii. Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. (b.) Does the Veteran present with patellar instability, as follows: a. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker; or b. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker; or c. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. In addressing the Veteran's left knee instability, the examiner should consider the Veteran's lay statements about the instability symptoms he has experienced in his left knee, regardless of findings on instability objective testing on examination. The examiner is also advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to respond to requests for authorizations or to submit records on his own behalf or to appear for an (CONTINUED ON NEXT PAGE) examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.