Citation Nr: 22018507
Decision Date: 03/29/22	Archive Date: 03/29/22

DOCKET NO. 16-31 801
DATE: March 29, 2022

REMANDED

Entitlement to a rating in excess of 10 percent prior to January 10, 2020 and in excess of 20 percent from January 10, 2020 for residuals of right tibia and fibula fracture with arthritic changes of the right knee is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1973 to October 1977. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO).

In an October 2020 decision, the Board in pertinent part denied the Veteran's claim of entitlement to a rating in excess of 20 percent for degenerative arthritis with spondylolisthesis and central canal stenosis of the lumbar spine and an evaluation in excess of 10 percent for residuals of right tibia and fibula fracture with arthritic changed of the right knee. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In September 2021, CAVC issued an order granting a Joint Motion for Partial Remand (JMPR) which vacated and remanded the Board's denials of the Veteran's claims seeking increased ratings for his right knee and lumbar spine disabilities. 

A January 2022 rating decision granted service connection for bilateral lower extremity radiculopathy and assigned an evaluation of 10 percent each for right and left lower extremity radiculopathy.  Thus, the issue identified in the JMPR regarding whether the Veteran should be compensated for radiculopathy has been determined and granted.  The Veteran has the opportunity to appeal the downstream issues of the rating and the effective date if he wishes to do so by responding to the January 2022 rating decision which made such determinations.

Entitlement to a rating in excess of 10 percent prior to January 10, 2020 and in excess of 20 percent from January 10, 2020 for residuals of right tibia and fibula fracture with arthritic changes of the right knee is remanded.

Further development is required prior to adjudication. 

The matters are REMANDED for the following action:

Obtain an in-person examination regarding the Veteran's right knee.

After a review of the claims file and notation of such and examination of the Veteran, the examiner should make the following determinations: 

Was there impairment of the right tibia and fibula with slight, moderate or marked knee or ankle disability prior to January 10, 2020?  

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Is there a right leg length discrepancy?  If so, is it due to the Veteran's fracture to the tibia in 1976 and an internal fixation of a plate in 1977?  Why or why not?

The examiner is informed that a positive opinion does not require certainty.  Rather, if the weight of the evidence is in approximate balance for and against an opinion, the examiner should make a determination favorable to the Veteran.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Alexander

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.