Citation Nr: 21032190
Decision Date: 05/26/21	Archive Date: 05/26/21

DOCKET NO. 10-31 859A
DATE: May 26, 2021

REMANDED

Entitlement to an increased rating for left knee patellofemoral syndrome, currently evaluated as 10 percent disabling, is remanded.

Entitlement to an increased rating for right knee patellofemoral syndrome, currently evaluated as 10 percent disabling, is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active service in the United States Army from December 1981 to December 2001.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ).

In November 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been included in the claims file.

In March 2014 and February 2017, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. That development was completed, and the case has since been returned to the Board for appellate review.

Pursuant to the February 2017 remand directives, the Veteran was afforded a VA examination in February 2020 to ascertain the current severity and manifestations of his right and left knee disabilities. However, during the examination, the Veteran reported that he had his right knee replaced in November 2019 and that he was still convalescing. In addition, he reported that he had a post-operative follow-up appointment with his private surgeon in February 2020. However, records from that appointment and any subsequent treatment have not been obtained and associated with the record. Therefore, a remand is necessary to obtain any outstanding pertinent records.

The Board also finds that any decision with respect to the increased rating claims remanded herein may affect the Veteran's claim for TDIU. Thus, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Final appellate review of the Veteran's claim for TDIU must be deferred until the appropriate actions concerning the Veteran's increased rating claims for his left and right knee disabilities are completed and the matters are either resolved or prepared for appellate review.

The matters are REMANDED for the following action:

1.  The AOJ should obtain all outstanding private treatment records, to specifically include any outstanding post-operative follow-up at Palmetto Bone and Joint, P.A., dated from February 2020 to present.  The RO must make two attempts to obtain the private medical records unless the first attempt demonstrates that further attempts would be futile.

If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain the records, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated.

2.  The AOJ should undertake any additional development as a result, to specifically include, but not limited to, providing the Veteran with another VA examination to ascertain the current severity and manifestations of his right and left knee disabilities.

 

 

ROBERT C. SCHARNBERGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Osegueda, 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.