Citation Nr: 21031305 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-54 525 DATE: May 21, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia (claimed as left knee injury) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 2011 to March 2012. In October 2019, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing has been associated with the claims file. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in October 2019 and January 2021. Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia (claimed as left knee injury) is remanded. 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). The Veteran's disability is currently rated under Diagnostic Code 5257. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. The first is for recurrent subluxation or instability. The second is for patellar instability. As these revisions are pertinent to the present appeal and may be applied from the date of implementation (February 7, 2021), a remand is necessary so that the VA examiner can comment on the Veteran's left knee symptoms with specificity to the revised rating criteria. As to recurrent subluxation and instability, a 30 percent rating is warranted with 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; a 20 percent rating is warranted with either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation; a 10 percent rating is warranted for 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 or bracing for ambulation. For patellar instability: a 30 percent rating is warranted for 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; a 20 percent rating is warranted for a condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker; and a 10 percent rating is warranted for a 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. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2). While the record does not currently reflect a diagnosis of "patellar instability," during the Board hearing, the Veteran explained that at the time of her October 2019 visit with Dr. G, he indicated that the Veteran's kneecap was "maltracking." The January 2020 and June 2019 VA examiners did not indicate diagnoses of recurrent subluxation or knee instability. However, considering that the VA examination reports do not specifically address "patellar instability," the Veteran has been diagnosed with a condition involving the patellofemoral complex (chondromalacia patella), and in light of her testimony, clarification is needed as to whether the Veteran has a condition involving the patellofemoral complex with recurrent instability. Additionally, in its previous remand, the Board directed the RO to obtain and associate with the claims file any outstanding private medical treatment records, including from Drs. V and G., with any necessary assistance from the Veteran. All efforts to obtain the records, including documentation of an October 3, 2019, examination with Dr. G., were to be documented in the claims file. It was further noted that the records previously would not be provided to the VA without payment and that the Veteran indicated she had copies of the records that she would be able to provide. In January 2021, the RO sent the Veteran a subsequent development letter requesting that she complete and return a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs so that VA could obtain treatment records on her behalf. It further noted she may want to send the records herself, if possible. In its February 2021 Supplemental Statement of the Case, the RO indicated that, as of that time, it had not received the VA Form 21-4142 from the Veteran. Considering remand is warranted for additional development to address the new rating criteria, the Board finds that an additional attempt to obtain the relevant private treatment records should be made. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Request the Veteran provide a copy of records documenting her October 3, 2019 visit with Dr. G. 3. With any necessary assistance from the Veteran, obtain and associate with the claims file any outstanding relevant private treatment records, including from Drs. V. and G. 4. Then, obtain an addendum opinion from a VA clinician to address whether the Veteran has a condition involving the patellofemoral complex with recurrent instability. Whether another examination is warranted is left to the discretion of the clinician. If an examination is needed, schedule the Veteran at the facility in Biloxi, Mississippi or other appropriate facility that is near her home. The examiner must ensure that the revised rating criteria of Diagnostic Code 5257 (effective from February 7, 2021) are amply addressed, whether or not the revised criteria are reflected in the Disability Benefits Questionnaire. This discussion should include a full description of the whether this disability is manifested by a ligament tear (incomplete, complete), a diagnosed condition involving the quadriceps tendon, the patella, or the patellar tendon, whether or not such has been repaired, and whether assistant devices such as crutches, a walker, and/or a brace have been prescribed by a medical professional. 5. Undertake any additional development as a result of the above. 6. Then, readjudicate the claim based on the entirety of the evidence. If the claim remains denied, issue the Veteran a supplemental statement of the case (SSOC) and allow an appropriate period for response before returning the matter to the Board for further appellate adjudication. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.