Citation Nr: 21030049 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-44 545 DATE: May 17, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1989 to February 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In July 2019, the Veteran testified before a Veterans Law Judge (VLJ); the transcript is of record. The Veteran was notified in March 2021 that the VLJ who conducted the July 2019 hearing was no longer available to participate in the adjudication of the Veteran's claim. The Veteran was also informed of his right to a new hearing. This letter indicated that if there was no response to this letter within 30 days, the Board would presume that the Veteran did not desire another hearing. The Veteran did not respond. It is, therefore, presumed that the Veteran intended to waive his election to have another Board hearing. In an October 2019 decision, the Board, in pertinent part, granted a separate 10 percent disability rating based on left knee instability, and a separate 10 percent disability rating based on right knee instability, and remanded the issues of entitlement to initial disability ratings in excess of 10 percent for left and right knee disabilities. In a September 2020 Order, the Court of Appeals for Veterans Claims (Court) granted an August 2020 Joint Motion for Partial Remand (JMPR), vacated the October 2019 Board decision insofar as it denied higher initial ratings for left and right knee instability, and remanded these matters to the Board for compliance with the JMPR instructions. The parties to the JMPR agreed that the Board prematurely adjudicated entitlement to higher initial ratings for left and right knee instability because the development ordered by the Board with respect to the Veteran's claim for higher disability ratings for his left and right knee disabilities might also lead to additional evidence relevant to the instability rating issues. Here, there is not yet substantial compliance with the Board's October 2019 remand directives, as the AOJ has not obtained the Veteran's outstanding private treatment records, to include from Kaiser Permanente records since March 2014, nor has the Veteran been afforded an examination to determine the current severity of his left and right knees. This development must be completed before the Board can address the merits of these claims. Accordingly, the matters are remanded to complete that development. The matters are REMANDED for the following action: Ensure compliance with all of the Board's October 2019 remand directives, including the following: 1. Contact the Veteran and request that he provide the names and addresses of any and all health care providers who have provided treatment for his right and left knees, including, but not limited to, medical records from Kaiser Permanente since March 2014. After acquiring this information and obtaining any necessary authorization, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran. 2. Obtain all outstanding records of VA evaluation and/or treatment records of the Veteran since June 2015. 3. After completing directives #1 and #2, schedule the Veteran for a VA examination to determine the current severity of his right and left knee disabilities. Amanda Christensen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.