Citation Nr: 24002145 Decision Date: 01/16/24 Archive Date: 01/16/24 DOCKET NO. 19-02 825 DATE: January 16, 2024 REMANDED Prior to August 1, 2018, entitlement to a disability rating in excess of 30 percent for a right knee disability (disregarding the period from May 9, 2018 to June 30, 2018, during which a temporary 100 percent rating was in effect under 38 C.F.R. § 4.30), to include entitlement to a separate compensable rating for instability, is remanded. The issue as to whether a May 2018 rating reduction from 30 percent to 10 percent for a right knee disability was proper is remanded. From August 1, 2018, entitlement to a rating in excess of 10 percent for a right knee disability (disregarding the period beginning September 18, 2023, during which a temporary 100 percent rating is in effect under 38 C.F.R. § 4.30), to include entitlement to a separate compensable rating for instability, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from September 1972 to September 1978. His decorations and medals include the National Defense Service Medal and the Good Conduct Medal. In April 2021, the Veteran testified before the undersigned at a Board of Veterans' Appeals (Board) virtual hearing. A transcript is of record. Later that month, the Board remanded the appeal for evidentiary development. In a February 2022 decision, the Board denied entitlement to increased ratings for the Veteran's right knee disability for the periods prior to August 1, 2018 and thereafter. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2023 Memorandum Decision, the Court vacated the Board's decision and remanded the appeal for actions consistent with the Memorandum Decision. (In its February 2022 decision, the Board also remanded an effective date issue pertaining to the Veteran's right knee disability for issuance of a Statement of the Case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). In March 2022, a responsive SOC was issued. The Veteran did not timely perfect his appeal as to that issue.) The Board notes that, in November 2023, the Regional Office (RO) issued a rating decision granting a temporary evaluation of 100 percent, effective September 18, 2023, based on surgical or other treatment necessitating convalescence pursuant to 38 C.F.R. § 4.30. That decision also recharacterized the right knee disability as "total right knee replacement (previously rated as right knee osteoarthritis, instability, arthroscopy with degenerative joint disease)." This rating action does not constitute a complete grant of benefits sought, as higher ratings are available for prior periods. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Prior to August 1, 2018, entitlement to a rating in excess of 30 percent for a right knee disability, to include entitlement to a separate compensable rating for instability 2. Whether a May 2018 rating reduction from 30 percent to 10 percent for a right knee disability was proper 3. From August 1, 2018, entitlement to a rating in excess of 10 percent for a right knee disability, to include entitlement to a separate compensable rating for instability The May 2023 Memorandum Decision reflects the Court's conclusion that the Board's February 2022 decision addressed certain issues on the merits despite the lack of appropriate procedural compliance. For the following reasons, a remand is warranted. As to the rating period for the right knee disability prior to August 1, 2018, an SOC is needed. In an August 2016 rating decision, the RO had continued a previously assigned 30 percent rating. In April 2017, within one year of that decision, the Veteran filed a notice of disagreement (NOD) which the Court determined and the parties agreed "may fairly be read as disagreeing with the 30 percent rating assigned in the August 2016 RO decision." The Veteran was never provided an SOC regarding this issue. Accordingly, the issue remains in appellate status and must be remanded for the RO to issue an SOC. Manlincon, 12 Vet. App. at 240-41. As to the propriety of the rating reduction, the Court noted that the Veteran's July 2018 NOD should be sympathetically read as expressing disagreement with a May 2018 rating decision which reduced the rating for the Veteran's right knee disability from 30 percent to 10 percent disabling, effective August 1, 2018. Again, however, the Veteran was never provided an SOC regarding this issue. The Court noted that a January 2019 SOC concerned entitlement to an increased rating for the right knee disability for the period beginning August 1, 2018 but did not include citations to the relevant statutes and regulations applicable to rating reductions and also failed to include any discussion of the history of the Veteran's right knee disability prior to March 2017 or whether there had been an improvement in the disability. Accordingly, the reduction issue also remains pending and must be remanded for the RO to issue an SOC. Id. Finally, as to the rating period beginning August 1, 2018, the Court agreed that the Board did have jurisdiction as to the proper disability rating for this period, as the Veteran had perfected his appeal following a January 2019 SOC that denied entitlement to a rating in excess of 10 percent from August 1, 2018. The Court noted, however, that this issue was inextricably intertwined with the Veteran's appeal of the rating reduction, which remains pending for lack of an SOC. Consequently, remand is required. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a Statement of the Case that addresses the issues of (1) entitlement to a rating in excess of 30 percent for a right knee disability prior to August 1, 2018, to include entitlement to a separate compensable rating for instability, and (2) whether a May 2018 rating reduction from 30 percent to 10 percent for a right knee disability was proper. (Continued on the next page) ? If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue/s should be returned to the Board for further appellate consideration. 2. Readjudicate the inextricably intertwined issue of entitlement to a rating in excess of 10 percent for a right knee disability, to include entitlement to a separate compensable rating for instability, for the period beginning August 1, 2018. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate consideration. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.