Citation Nr: 21030143 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 12-41 830A DATE: May 17, 2021 REMANDED Entitlement to a rating higher than 10 percent for status post arthroscopic chondroplasty with osteoarthritis of the right knee is remanded. REASONS FOR REMAND The Veteran had active service from April 1990 to April 1994. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in January 2017 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In May 2017, the Board remanded this claim for additional development. The Board notes this appeal also included entitlement to a temporary total disability rating based on the need for convalescence for a right knee disability and entitlement to a temporary total disability rating based on the need for convalescence for a left knee disability; however, these issues were granted in a January 2019 rating decision, and as such, are no longer on appeal. The issues of entitlement to a rating higher than 20 percent for recurrent dislocation of the left knee, entitlement to a rating higher than 10 percent for arthritis due to limitation of extension of the left knee, and entitlement to an effective date earlier than August 28, 2007 for the grant of service connection for arthritis due to limitation of extension of the left knee, were the subject of a Board Remand in November 2018 and May 2021 (jurisdiction over which lies with another Veterans Law Judge). These issues are in Remand status and have not yet been recertified to the Board. Also, the Board recognizes the Report of General Information in June 2019 in which it is noted that the Veteran requests a claim for a total disability rating based on individual unemployability to be added. In light of arguments set forth in a February 2017 statement in response to the Board's May 2016 decision and development ordered (e.g., USPS disability retirement records from OPM) by the Board in Remands dated in March 2017 and November 2018, this matter is beyond the scope of this appeal addressed herein and remains for consideration in connection with the other pending appeal. In an August 2019 decision, the Board denied the issue on appeal. The Veteran appealed the August 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Remand (JMR). In August 2020, the Board remanded this claim for additional development. Entitlement to a rating higher than 10 percent for status post arthroscopic chondroplasty with osteoarthritis of the right knee. Subsequent to the most recent supplemental statement of the case in February 2021, the Veteran was afforded a VA examination for his knees in April 2021. The Board also notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). To date, the Veteran's claim has not yet been adjudicated with consideration of the new rating criteria. A remand is required for the RO to issue a new supplemental statement of the case which provides the Veteran with notice of the new musculoskeletal rating criteria, considers the April 2021 VA examination and adjudicates the claim considering the new musculoskeletal criteria, as applicable. See 38 C.F.R. § 19.31; Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The matters are REMANDED for the following action: Issue a SSOC that provides the Veteran with notice of the new musculoskeletal Diagnostic Codes for rating the knee, considers all evidence associated with the file since the February 2021 SSOC (particularly the April 2021 VA examination of the knees), and adjudicates the claim for entitlement to a rating higher than 10 percent for status post arthroscopic chondroplasty with osteoarthritis of the right knee considering the new criteria, as applicable. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.