Citation Nr: 21029244 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 09-41 853 DATE: May 13, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a right knee disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1969 to February 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision which increased the rating for the right knee disability from 10 to 20 percent, effective May 18, 2006 (the date of claim for increase). In March 2013 and July 2013, the case was remanded for additional development. A March 2014 Board decision granted a 20 percent rating for the period prior to May 18, 2006, and denied a rating in excess of 20 percent. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in an April 2015 Memorandum Decision. In November 2015, the Board remanded the matter for additional development. In March 2017, the Board again denied a rating in excess of 20 percent. The Veteran again appealed the Board's decision to the CAVC, resulting in a March 2018 Joint Motion for Remand (JMR) by the parties. A March 2018 CAVC Order vacated the Board's decision and remanded the matter for compliance with JMR instructions. In August 2018, the case was again remanded for further development. This matter was last before the Board in July 2020 when it was remanded for evidentiary development. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there has not been substantial compliance with the prior July 2020 Board remand directives. Accordingly, the Board must remand the matter again for a VA addendum opinion. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c), 38 U.S.C. § 7107 (a)(2). Entitlement to a rating in excess of 20 percent for a right knee disability is remanded. While the Board regrets the further delay in resolution of this matter, it finds a remand for further evidentiary development unavoidable. In July 2020 the case was remanded for clarification of the June 2016 VA knee examination findings to properly address the JMR concerns. The Board finds that remand is necessary to obtain clarification of the October 2020 VA report of examination received in response to the July 2020 remand. The Veteran's right knee disability has been rated 20 percent under diagnostic codes (Codes)5010-5262 because prior Board decisions found rating under that Code more beneficial to the Veteran. In the March 2018 JMR, the parties agreed that "the Board erred by failing to set forth an adequate statement of reasons or bases regarding whether [the Veteran] is entitled to a rating in excess of 20 percent for his right knee disability, to include whether separate ratings under Diagnostic Codes (Codes) 5257, 5259, and 5260 are warranted." Therefore, it is critical that there be adequate responses to the opinion requests regarding discussion of possible symptoms and impairment noted on examination considering those Codes. The October 2020 examiner was to comment on the significance of the October 7, 2015 private report of a varus test positive for instability, whether it reflected instability (in contrast to VA examination findings of no instability), and if so, reconcile the findings. In response, the October 2020 examiner noted there was no instability on the examination that day, although there was evidence of pain upon manipulation. Considering the examiner failed to address the October 2015 private report as required, clarification is necessary. The October 2020 examiner was to also determine if the Veteran had any residual symptoms from a 1979 meniscectomy, and if so, identify the symptoms, to include accounting for the Veteran's reports of locking and buckling, and reports of instability that (reportedly) have led to multiple falls. The examiner indicated that the Veteran subjectively reported painful joints and stiffness. The Board finds the examiner did not determine whether any of the Veteran's reports of such symptoms, during the period on appeal, reflected symptoms of the meniscectomy (to warrant a separate rating under Code 5259). Therefore, further clarification is necessary. The matters are REMANDED for the following action: 1. After obtaining proper authorization, obtain and associate with the claims file any outstanding VA treatment records and any relevant, outstanding private treatment records. 2. Thereafter, return the Veteran's claims file to the October 2020 VA examiner for review and an addendum opinion that addresses the unanswered medical questions remaining. [If that provider is unavailable (or the clarification sought cannot be provided without further examination), arrange for another orthopedic examination of the Veteran to assess the nature and severity of his knee disability.] On re-review of the record (and examination of the Veteran, if such was found necessary), the consulting provider should respond to the following: (a) Comment on the significance of the October 7, 2015 private report of a varus test positive for instability. Does it reflect instability (in contrast to VA examination findings of no instability)? If so, reconcile the findings (explain the different conclusions to the extent possible). (b) Has the Veteran had any symptoms residual from his 1979 meniscectomy, during the period on appeal? If so, identify the symptoms, to include accounting for all of his reports of symptoms such as locking, buckling, and reports of instability that (reportedly) have led to multiple falls. If such symptoms are less than likely related to the meniscectomy, identify, to the extent possible, the underlying pathology for the symptoms. The examiner must include rationale with all opinions, citing to supporting factual data as necessary. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.