Citation Nr: 21031731
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 15-11 067
DATE: May 24, 2021

REMANDED

1.  Entitlement to an increased rating for right knee strain under Diagnostic Code 5259, rated 20 percent disabling from November 13, 2012, to April 3, 2014, (rated 100 percent disabling for a convalescence period from April 4, 2014, to May 31, 2014) and 10 percent disabling from June 1, 2014, is remanded. 

2. Entitlement to an increased rating for right knee instability under Diagnostic Code 5257, rated 10 percent disability rating for right knee instability from January 16, 2018, is remanded.

REASONS FOR REMAND

The Veteran had active military service from January to June 1977, and January to May 2005.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In May 2020, the Board remanded this matter for further development.  

1. Entitlement to an increased rating for right knee strain under Diagnostic Code 5259, rated 20 percent disabling from November 13, 2012, to April 3, 2014, (rated 100 percent disabling for a convalescence period from April 4, 2014, to May 31, 2014) and 10 percent disabling from June 1, 2014, is remanded. 

2. Entitlement to an increased rating for right knee instability under Diagnostic Code 5257, rated 10 percent disability rating for right knee instability from January 16, 2018, is remanded.

A review of the record indicates that there are outstanding medical records of non-VA treatment authorized by VA.  The Veteran had surgery on her right knee in December 2019 from a private medical provider.  However, following the surgery it appears that she received non-VA orthopedic treatment through the Veteran's Choice program, now VA Community Care.   The Veteran's non-VA Choice /Community Care records are within VA's constructive possession and are considered potentially relevant to the issues on appeal.  VA has a duty to make as many requests as necessary to obtain records in the custody of a Federal department or agency unless concluding they do not exist or that further efforts to obtain them would be futile.  38 C.F.R. § 3.159(c)(2).  A remand is required to allow VA to obtain these records.

The matter must also be remanded to attempt to obtain any medical records that have been scanned into the Veteran's VA medical records.  VA records dated from approximately January 2018 to June 2020 document that several non-VA care consults have been scanned into the Veteran's records; however, the scanned documents have not been associated with the claims file.  VA must attempt to obtain these records.  Id.  

The matters are REMANDED for the following action:

1. Obtain copies of all non-VA treatment authorized by VA (e.g., Choice First, Veteran's Choice or Community Care programs).

Conduct any ensuing additional development, as necessary, and document negative results.  Any negative search results should be noted in the record and communicated to the Veteran pursuant to 38 C.F.R. § 3.159(e).

2. Obtain and associate with the record copies of any records found in VistA Imaging that are not currently associated with the record.

Conduct any ensuing additional development, as necessary, and document negative results.  Any negative search results should be noted in the record and communicated to the Veteran pursuant to 38 C.F.R. § 3.159(e).

3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal.

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Joseph R. Keselyak, 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.