Citation Nr: 22016544
Decision Date: 03/22/22	Archive Date: 03/22/22

DOCKET NO. 08-01 700
DATE: March 22, 2022

REMANDED

Entitlement to a rating in excess of 20 percent prior to May 7, 2021, and in excess of 40 percent from that date for right knee strain, limitation of extension is remanded.  

Entitlement to a rating in excess of 20 percent prior to May 7, 2021, and in excess of 40 percent from that date for left knee strain, limitation of extension is remanded.   

Entitlement to a compensable rating prior to and since May 7, 2021, for right knee strain, limitation of flexion is remanded.  

Entitlement to a compensable rating prior to April 22, 2021, a rating in excess of 20 percent from that date to May 7, 2021, and a compensable rating after May 7, 2021, for left knee strain, limitation of flexion, is remanded.  

REASONS FOR REMAND

The Veteran served on active duty from April 1996 to September 2004. This case has a long procedural history and has been before the Board multiple times, most recently in November 2020 when it was remanded for additional development. 

1. Entitlement to a rating in excess of 20 percent prior to May 7, 2021, and in excess of 40 percent from that date for right knee strain, limitation of extension.  

2. Entitlement to a rating in excess of 20 percent prior to May 7, 2021, and in excess of 40 percent from that date for left knee strain, limitation of extension.  

3. Entitlement to a compensable rating prior to and since May 7, 2021, for right knee strain, limitation of flexion.

4. Entitlement to a compensable rating prior to April 22, 2021, a rating in excess of 20 percent from that date to May 7, 2021, and a compensable rating after May 7, 2021, for left knee strain, limitation of flexion. 

After the most recent remand, the Agency of Original Jurisdiction (AOJ) readjudicated the claims and assigned separate ratings for each knee under various diagnostic codes. See April 2021 and July 2021 rating decisions. Those ratings are for manifestations of the increased rating claims on appeal and thus the appeals for the separate ratings are pending for the entire appeal period; that is, from November 2005.  

On remand, the AOJ must also clarify the change in diagnostic codes used to evaluate the separate ratings for the knee disabilities since the prior Board remand. The April 2021 rating decision granted a separate 20 percent rating for left knee instability under Diagnostic Code 5257, but the July 2021 rating decision decreased that evaluation to noncompensable and rated that part of the disability under Diagnostic Code 5260 for limitation of flexion. There was no explanation of the change in criteria considered. 

The AOJ must also ensure the Veteran has been provided notice of the evidence considered in the July 2021 rating decision. The AOJ issued the last supplemental statement of the case (SSOC) in April 2021. 

The matters are REMANDED for the following action:

1. Review the evidence added to the record since the April 2021 SSOC and readjudicate the claims for the separate manifestations of both knee disabilities for the entire appeal period. The readjudication must include consideration of all applicable diagnostic codes and a thorough explanation of the specific codes applied and the effective dates used. The Veteran must be provided all appropriate notice. 

 

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Jarman, 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.