Citation Nr: 21032398
Decision Date: 05/27/21	Archive Date: 05/27/21

DOCKET NO. 18-25 316
DATE: May 27, 2021

REMANDED

Entitlement to an initial higher than 10 percent for left patellofemoral pain syndrome is remanded.

Entitlement to an initial rating higher than 10 percent for right patellofemoral pain syndrome is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Air Force from February 1996 to February 2016.  These matters are on appeal from a May 2017 rating decision.

In March 2021, the Veteran testified at a Virtual Hearing with the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The Veteran has claimed that his service-connected bilateral knee disability is more severe than his current evaluations would indicate.

A September 2017 Decision Review Officer decision increased the rating for each knee from noncompensable (zero percent) to 10 percent, effective March 1, 2016.  However, as these grants do not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

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 bilateral knee disability is currently rated under Diagnostic Code 5260, but Diagnostic Code 5257 which rates recurrent subluxation or lateral instability of the knee now adds a rating for patellar instability and is applicable to the Veteran's bilateral knee disability claim.  Specifically, in March 2021 the Veteran testified that he wears bilateral knee braces.  He also testified that his bilateral knee disability had worsened since his most recent VA DBQ examination in January 2018.

Because the record does not contain sufficient evidence to rate the Veteran's bilateral knee disabilities under the new rating criteria and he testified that his disabilities have worsened since the most recent VA examination, his bilateral knee disability rating claims should be remanded for a new VA examination.  Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); VAOPGCPREC 11-95 (1995).  On remand, any additional VA treatment records should also be obtained.

The matters are REMANDED for the following actions

1.  Obtain all outstanding VA medical records related to the Veteran's bilateral knee disability, dated since January 2018.  All records and/or responses received should be associated with the claims file (the Veteran himself can also submit all record he believes to be pertinent).

2.  Schedule the Veteran for a VA examination, to ascertain and evaluate the current level of severity of his service-connected bilateral knee disabilities.  All indicated studies and tests should be performed.  The claims folder should be made available to the examiner for review of pertinent documents.  The examination reports should reflect that such a review was conducted.

The AOJ should ensure that the examiner provides all information required for rating purposes, under both the former and revised rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). 

 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Adams, 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.