Citation Nr: 22015406 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-18 991 DATE: March 17, 2022 REMANDED Entitlement to an increased disability rating higher than 10 percent for left knee bipartite patella and degenerative joint disease (DJD) with limitation of flexion is remanded. Entitlement to an increased disability rating higher than 10 percent for right knee bipartite patella and degenerative joint disease (DJD) with limitation of flexion is remanded. Entitlement to an increased disability rating higher than 10 percent for right knee meniscectomy is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to September 9, 2021, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1981 to May 1982, and in the United States Army from January 1985 to July 1985. This case comes to the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) rating decision dated in January 2015. A January 2020 Board decision was vacated by the United States Court of Appeals for Veterans Claims (Court) in March 2021. Most recently, in June 2021, the Board remanded the case to the AOJ for additional development. The matter has returned to the Board for further appellate review. The Board is obligated to ensure AOJ compliance with remand directives. Stegall v. West, 11 Vet. App. (1998). The Board finds that the AOJ has not substantially complied with remand directives, making another remand necessary. While the Veteran's appeal was pending, in an October 2021 rating decision, the AOJ granted service connection for right knee limitation of extension and left knee limitation of motion with an evaluation of 30 percent simultaneously, effective September 9, 2021. The AOJ also granted service connection for painful scar, left knee with an evaluation of 10 percent effective September 9, 2021; and TDIU effective the same date. In December 2021, appealing the ratings and effective dates of the bilateral knee limitation of extension and left knee scar disabilities, the Veteran filed a notice of Disagreement (NOD) electing the Decision Review Officer (DRO) Review Process. Simultaneously, the Veteran also filed a VA Form 20-0996 Request for Higher-Level Review appealing the effective dates and ratings for the bilateral knee limitation of extension and the left knee painful scar. Therefore, those claims are still being developed and have not been appealed to the Board. This matter has been advanced on the Board's docket. 1. Entitlement to an increased disability rating higher than 10 percent for left knee bipartite patella and degenerative joint disease (DJD) with limitation of flexion is remanded. 2. Entitlement to an increased disability rating higher than 10 percent for right knee bipartite patella and degenerative joint disease (DJD) with limitation of flexion is remanded. 3. Entitlement to an increased disability rating higher than 10 percent for right knee meniscectomy is remanded. As stated previously, the Board finds that the AOJ has not substantially complied with the remand directives in the June 2021 remand. Specifically, the AOJ was instructed to seek clarification from Dr. J. M. H. regarding the November 2015 private medical evaluation of the Veteran's service-connected knees including whether the Veteran's contemporaneous records were reviewed; whether a goniometer was used on examination; and to provide a rationale as to why his findings dated back to 2013. The claims file contains notations that the private examiner, Dr. J. M. H. was contacted on multiple occasions but to no avail. See October 2021 VA 27-0820 Report of General Information. However, the Board notes that the number and address listed on the reports of contacts are incorrect. Notably, a December 2021 fax correspondence from Dr. J. M. H's office showed a different address, fax, and telephone number. The fax also indicated that records prior to April 1, 2019, must be requested via email. See Third party Correspondence. In addition, the record also shows that in July 2021, the Veteran provided the VA with an updated address, fax, and phone number for Dr. J. M. H. See VA 27-0820 Report of General Information. It appears however, that the AOJ contacted Dr. J. M. H. on the wrong address and phone number. Accordingly, the Board finds that this matter must be remanded for additional development and compliance with the previous June 2021 Board remand. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to September 9, 2021, is remanded. The issue of TDIU is intertwined with the issues being remanded, and thus, must also be remanded to allow for proper development of all relevant issues. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA and private treatment records pertinent to the claims. 2. Verify Dr. J.M. H's current mailing/email address and ensure that his mailing address is properly annotated. 3. Then contact Dr. J.M.H. and request that he: (a) clarify whether his November 2015 private medical evaluation included use of a goniometer, (b) clarify whether he reviewed any contemporaneous treatment records (c) provide a rationale as to why his findings are applicable back to 2013 as indicated on the November 2015 examination report. 4. Thereafter, readjudicate the claims on appeal, including the issue of TDIU. If the benefit sought remains denied, issue the Veteran and his attorney a supplemental statement of the case (SSOC) and provide a reasonable opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.