THIGH IMPAIRMENT OF

Summary

The veteran, who served from March 2004 to September 2010, appeals the denial of increased ratings for his right knee strain and sought an initial rating for his left hip strain with thigh impairment. The Board granted an initial 10 percent rating for the left hip strain with thigh impairment, applying the benefit of the doubt doctrine due to approximate balance in the evidence regarding the Veteran's ability to cross his legs. The Veteran's lay testimony regarding this specific limitation was found competent and credible, outweighing the VA examiner's finding of no such limitation. For the right knee strain, the Board denied an increased rating beyond the 10 percent already assigned. While acknowledging the Veteran's pain and functional loss, the Board found the evidence, including VA treatment records and a September 2020 VA examination, did not support a rating higher than 10 percent, as the Veteran's symptoms and range of motion limitations did not more closely approximate the criteria for a higher rating. The Board also considered other diagnostic codes for knee and leg impairments but found them inapplicable. Several claims for increased ratings for left ankle disability, left knee strain, and left hip strain (including limitation of flexion and labral tear) were remanded due to a pre-decisional duty to assist error, specifically the failure to obtain VA physical therapy records for the left lower extremity that were of record prior to the AOJ decision.

Rationale

Competent and credible lay testimony regarding inability to cross legs.; Benefit of the doubt applied due to approximate balance of evidence.; VA examiner's finding of no limitation contradicted by Veteran's credible testimony.

Full Decision Text

Citation Nr: A26039203
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 210204-142026
DATE: April 27, 2026

ORDER

Entitlement to an initial 10 percent rating for a left hip strain with impairment of the thigh under Diagnostic Code 5253 is granted.

Entitlement to a rating in excess of 10 percent for a right knee strain is denied.

REMANDED

Entitlement to a rating in excess of 10 percent for status post left posterior tibial and plafond fracture and ankle sprain (left ankle disability) is remanded.

Entitlement to a rating in excess of 10 percent for a left knee strain is remanded.

Entitlement to an initial compensable rating for a left hip strain with limitation of flexion is remanded.

Entitlement to an initial rating in excess of 10 percent for a left hip strain with thigh impairment is remanded.

Entitlement to a rating in excess of 10 percent for a left hip strain with labral tear is remanded.

FINDINGS OF FACT

1. Throughout the period on appeal, the competing lay and medical evidence is in approximate balance regarding whether the Veteran's left hip strain with thigh impairment was manifested by an inability to cross his legs. Thus, the Board resolves the benefit of the doubt in favor of the appellant.

2. The Veteran's right knee flexion was not limited to 30 degrees or less.

CONCLUSIONS OF LAW

1. The criteria for an initial 10 percent rating for a left thigh strain are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253.

2. The criteria for a rating in excess of 10 percent for a right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 2004 to September 2010. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2020 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The modernized review system, also known as the Appeals Modernization Act (AMA), applies. 

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on September 16, 2024. Therefore, the Board may only consider the evidence of record at the time of the October 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claims of entitlement to a rating in excess of 10 percent for a left ankle, bilateral knee, and left hip disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Neither the Veteran nor representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald,
 rating in excess of 10 percent for a left ankle, bilateral knee, and left hip disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Neither the Veteran nor representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

As an initial matter, the Veteran attempted to appeal an issue regarding his lower back. However, only one rating decision was issued within one year of the February 2021 Notice of Disagreement, that being the October 2020 decision. The October 2020 decision did not provide a decision on the merits regarding the Veteran's lower back. In fact, no rating decision of record has provided a determination on the merits as to whether service connection for a lower back disability is warranted. As such, the issue is not currently on appeal before the Board and will not be discussed further. The Veteran may file a claim seeking entitlement to service connection for a lower back disability, if he wishes.

Increased Ratings

A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinse
 or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

1. Entitlement to an initial 10 percent rating for a left hip strain with impairment of the thigh.

The Veteran seeks an initial compensable rating for his left hip strain with impairment of the thigh. After thorough review of the record, the Board finds an initial rating 10 percent rating is warranted. Whether entitlement to a rating in excess of 10 percent for left hip strain with thigh impairment is warranted will be addressed separately in the remand section below. 

The Veteran's left hip strain with impairment of the thigh (left thigh disability) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5253, for impairment of the thigh.  Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253.  

The Veteran's VA treatment records show consistent reports of left hip pain throughout the period on appeal. For example, in July 2020, the Veteran reported left lower extremity pain, swelling, and skin redness that comes and goes as well as pain with a gentle touch on occasion. His extremity is weakened by the end of the day and there is tightness in the morning. His provider indicated a decreased range of motion but did not provide any estimates. He was diagnosed with regional pain syndrome but this does not appear to cause any separate functional loss. Rather, it is a description of the Veteran's general left extremity pain as it covers a majority of the limb. He reported the use of a walking stick or cane when walking for more than 14 of a mile. He also reported some left leg pain and stiffness with 2 to 3 hours of walking or physical activity. Even when resting or sitting, he has severe pain. 

In a September 2020 VA examination, the Veteran reported left hip pain. He is unable to play with his kids or run. He reported the use of topical and oral medications for pain. Left hip active flexion was limited to 110 degrees while external rotation was limited to 40 degrees. There was no limitation of extension, abduction, adduction, or internal rotation. The same was noted for passive range of motion testing. This range of motion caused functional impairment to include limited ability to squat. Pain was noted with all motion and weight bearing. There was no evidence of crepitus. There was no additional loss in range of motion after repetitive use or repeated use over time testing. The examiner indicated post test adduction was not so limited that the Veteran was unable to cross his legs. As the Veteran denied experiencing flare ups, no estimated range of motion measurements were provided. No additional contributing factors of his left hip disability were noted. His left hip muscle strength was 5/5 in flexion, extension, and abduction with no muscle atrophy noted. No ankylosis of the left hip was noted. The examiner specifically found no evidence of malunion or nonunion of the femur, flail hip join, or leg length discrepancy. The examiner noted an antalgic gait "likely associated with pain on left hip and left ankle." He also endorsed the occasional use of a cane when walking. The examiner also noted a newly diagnosed left hip labral tear but found the evidence was unclear regarding whether this was related to his service connected left hip strain. Rather, it was "more likely an unrelated new injury of the left hip." The examiner attributed the Veteran's abnormal gait and pain on palpitation to the labral tear. 

During the September 2024 hearing, the Veteran reported significant levels of left hip pain throughout the period on appeal. He reported stiffness in the left hip down when sitting for too long. He had difficulty walking for long periods as his left lower extremity would swell, tingle, ache, and burn. This sometimes made
 left hip and left ankle." He also endorsed the occasional use of a cane when walking. The examiner also noted a newly diagnosed left hip labral tear but found the evidence was unclear regarding whether this was related to his service connected left hip strain. Rather, it was "more likely an unrelated new injury of the left hip." The examiner attributed the Veteran's abnormal gait and pain on palpitation to the labral tear. 

During the September 2024 hearing, the Veteran reported significant levels of left hip pain throughout the period on appeal. He reported stiffness in the left hip down when sitting for too long. He had difficulty walking for long periods as his left lower extremity would swell, tingle, ache, and burn. This sometimes made it difficult to stand. His pain worsened when trying to complete activities of daily living to include working. He was in physical therapy in an attempt to reduce his pain levels but asserted he was told his hips are "severely arthritis." The Veteran testified that he was unable to cross his left leg over the right since at least 2020. He also had significant difficulty getting in and out of his truck. For example, when getting out of the car, he testified his hip would lock up and he had to straighten his leg to "pop it back without it staying in that locked position." This resulted in extreme pain. He testified he did not ride in his wife's smaller vehicle as he could not get in and out of it. 

The Veteran is competent to report on the observable aspects of his left hip disability to include an inability to cross his left leg over his right leg since 2020. At this time, the Board finds no reason to doubt his credibility in this manner. The Board acknowledges the examiner found the Veteran's limitation of motion did not prevent him from crossing his legs. However, as the Veteran's lay assertions are both competent and credible in this instance, the Board will resolve all reasonable doubt in his favor. In considering the record as a whole, the evidence is at least in approximate balance to find the Veteran has been unable to cross his legs since filing his claim in May 2020. Entitlement to a 10 percent rating under DC 5253 is warranted.

Based on the foregoing, the Board finds that the competent and credible evidence is approximately balanced as to whether entitlement to a 10 percent rating for a left thigh impairment is warranted. The benefit of the doubt doctrine applies. 38?U.S.C. §?5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The claim is granted.

2. Entitlement to a rating in excess of 10 percent for a right knee strain.

The Veteran seeks a rating in excess of 10 percent for his right knee strain. 

The Veteran's right knee strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for a right knee strain. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, his right knee strain disability would still not result in limitation of motion more nearly approximating flexion limited to 30 degrees. 

The Veteran's VA treatment records show consistent reports of bilateral knee pain. However, his other reported knee symptoms were attributed to only the left knee or leg. 

In a September 2020 VA examination, the Veteran's current symptoms were reported as, "occasional knee pain." The Veteran stated, "I can feel it, it does not bother me much." He reported being unable to do things with his kids or run. He uses both topical and oral medication. He reported the use of a cane due to his back, left hip, and left ankle pain but did not report the use of such due to his right knee. His right knee active range of motion showed he was able to reach full flexion to 140 degrees and full extension to 0 degrees. There was pain on flexion and with palpation of the joint. The same was noted with passive range of motion testing. There was no pain with non-weight-bearing. There was no additional loss in range of motion after repetitive use or repeated use over time testing.
 stated, "I can feel it, it does not bother me much." He reported being unable to do things with his kids or run. He uses both topical and oral medication. He reported the use of a cane due to his back, left hip, and left ankle pain but did not report the use of such due to his right knee. His right knee active range of motion showed he was able to reach full flexion to 140 degrees and full extension to 0 degrees. There was pain on flexion and with palpation of the joint. The same was noted with passive range of motion testing. There was no pain with non-weight-bearing. There was no additional loss in range of motion after repetitive use or repeated use over time testing. As the Veteran denied having flare ups of his bilateral knee disability, no estimated range of motion was provided. His right knee muscle strength in flexion and extension was 5/5 with no atrophy noted. No right knee ankylosis was indicated. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was performed but no instability was found. There was no evidence of shin splints, stress fracture, chronic exertional compartment syndrome, or any other tibial or fibular impairment. No meniscal conditions or surgeries were indicated. There were no additional pertinent physical findings and while the Veteran reported the use of a cane, this use was not attributed to his right knee symptoms. 

The Board acknowledges the Veteran's assertions regarding his VA examinations. Specifically, that the examiner seemed "confused" about what to report, they only checked his knee flexibility, and did not test for instability. However, when looking at the face of the examination, there is nothing to indicate the required testing was not completed as all of the required information was provided. Remand by the Board in the AMA is proper for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802 (a). In this case, there is no evidence prior to the issuance of the October 2020 decision on appeal that calls to question the adequacy of the September 2020 examination. At this time, remand for a new VA examination of the right knee is not warranted. 

During the September 2024 hearing, the Veteran's testimony was heavily focused on his left lower extremity as this appears to be causing a majority of his pain. Regarding both knees, he indicated he experienced popping when he stood and pain. He indicated his left knee was worse than the right knee and provided testimony regarding how his left knee impacted his life. Specifically, due to his left knee symptoms, he was unable to fully extend his knee when in a seated position and could only extend it about halfway. His left knee would hurt requiring he use a walking stick. Activities such as walking around the grocery store require him to rest after. He also indicated there were issues getting in and out of his car and depending on the activities he does in a day, both pain and fatigue will cause the knee to go out. However, except for popping and pain, the other symptoms reported were not specifically attributed to the right knee but were often discussed in reference to his left knee.  

VA medical records were submitted in September 2024 and October 2024. However, these records do not show treatment for a right knee strain symptoms during or relevant to the current period on review. As such, they are not probative to the current issue before the Board.

The Veteran is competent to report on the observable aspects of his right knee strain to include experiencing pain. The Board finds no reason to doubt his credibility in this matter. However, the Veteran's VA treatment records and his September 2024 testimony appear to be more focused on his left lower extremity as this is the source of a lot of his pain. While the Veteran reported a significant limitation of extension of the knee during the September 2024 hearing, there is no evidence of record showing this was the case prior to the issuance of the decision on appeal or that he was specifically attributing this to the right knee. Instead, the September 2020 VA examination found he was able to fully extend his right knee, at which time the Veteran also reported his right knee did not bother him much. The Veteran's main right knee symptom is pain that appears to have worsened over time and with activity. Based on the above, the Veteran's right knee symptoms did not more closely approximate that of flexion limited to 30 degrees or less. As such, a rating in excess of 10 percent for a right knee strain under DC
 limitation of extension of the knee during the September 2024 hearing, there is no evidence of record showing this was the case prior to the issuance of the decision on appeal or that he was specifically attributing this to the right knee. Instead, the September 2020 VA examination found he was able to fully extend his right knee, at which time the Veteran also reported his right knee did not bother him much. The Veteran's main right knee symptom is pain that appears to have worsened over time and with activity. Based on the above, the Veteran's right knee symptoms did not more closely approximate that of flexion limited to 30 degrees or less. As such, a rating in excess of 10 percent for a right knee strain under DC 5260 is not warranted. 

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). 

A rating under DC 5256 is not warranted as the Veteran does not have ankylosis of the right knee. Specifically, his VA treatment records and the September 2020 VA examiner both declined to provide such a diagnosis. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e., functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Veteran denied the existence of flare ups but indicated after sitting for long periods he will have knee stiffness. However, this appears to be mainly attributed to his entire left lower extremity and at no time did he specifically identify any right knee stiffness. Even still, at no time did the Veteran report a locking of the right knee in any one fixed position. Based on the above, the Board finds that the evidence does not support a finding that the overall disability picture approximates ankylosis of the right knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. That is, he does not experience flare-ups that approximate the same level of disability as if he had functional immobility of the joint as his typical predominant level of disability. Thus, Board finds that the requirement of favorable ankylosis of the right knee cannot be met with evidence of the functional equivalent of ankylosis in this particular case.

A rating under DC 5257 is not warranted as the Veteran does not have right knee recurrent subluxation or instability. He also does not have patellar instability. While the Veteran reported falls, to include falling down the stairs, this was attributed to his left lower extremity and not his right knee. At no time did the Veteran report, or the record reflect, there were issues with right knee instability. 

The Veteran's VA treatment records, the September 2020 VA examination, and September 2024 testimony fail to show any right knee semilunar cartilage dislocations or removals. As such, ratings under DC 5258 and 5259 are not warranted. As the Veteran's right knee extension was not limited at any time, a rating under DC 5261 is not warranted.

Moreover, the Veteran has not had a tibia or fibula impairment during the period on review as specifically indicated in the September 2020 VA examination. He also does not have a diagnosis of genu recurvatum. As such ratings under DC 5262 and 5263 are not warranted.

Finally, the Board acknowledges that in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court of Appeals for Veterans Claims found that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." In considering all of the ratings above, the Veteran reported using a cane and physical therapy to help his symptoms without resolution. These are not considered forms of medication. The Veteran also reported using some pain medication. However, he reported pain despite his medication use designed to prevent such a symptom. The Board acknowledges the Veteran indicated the use of medication and that he used several other non-medication based alleviating factors to reduce his pain. However, the Veteran did not assert medication alone impacts his pain levels or functional ability and has instead consistently reported significant pain throughout the period on appeal. The persuasive weight of the record does not show the Veteran's medication use improves
 rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." In considering all of the ratings above, the Veteran reported using a cane and physical therapy to help his symptoms without resolution. These are not considered forms of medication. The Veteran also reported using some pain medication. However, he reported pain despite his medication use designed to prevent such a symptom. The Board acknowledges the Veteran indicated the use of medication and that he used several other non-medication based alleviating factors to reduce his pain. However, the Veteran did not assert medication alone impacts his pain levels or functional ability and has instead consistently reported significant pain throughout the period on appeal. The persuasive weight of the record does not show the Veteran's medication use improves his functionality or reduces his symptoms. There are no beneficial medication effects to discount. See Ingram v. Collins, 38 Vet. App. 130 (2025).

Based on the foregoing, the Board finds that the competent and credible evidence is neither evenly nor approximately balanced as to whether entitlement to a rating in excess of 10 percent for a right knee strain is warranted. Rather, the evidence persuasively weighs against finding his right knee flexion was limited to 30 degrees or less. The benefit of the doubt doctrine does not apply. 38?U.S.C. §?5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (holding the benefit-of-the-doubt doctrine is not for application when the evidence is persuasively for or against the claim). The claim is denied.

REASONS FOR REMAND

1. Entitlement to a rating in excess of 10 percent for a left ankle disability.

2. Entitlement to a rating in excess of 10 percent for a left knee strain.

3. Entitlement to an initial compensable rating for a left hip strain with limitation of flexion.

4. Entitlement to an initial rating in excess of 10 percent for a left hip strain with thigh impairment.

5. Entitlement to a rating in excess of 10 percent for a left hip strain with labral tear.

The Veteran seeks a rating in excess of 10 percent for his left ankle, left knees, and left hip disabilities. However, the Board finds remand to correct a pre-decisional duty to assist error is warranted.

The Veteran's VA treatment records show that in a July 2020 pain clinic initial evaluation that Veteran reported left lower extremity pain. Physical therapy was suggested for the left lower extremity and the Veteran indicated it had been helpful. He was last seen by a physical therapist the week prior. There is no indication from these records that the Veteran was seeing an outside physical therapist; rather, it appears there should have been VA generated medical records of these appointments. However, there are no medical records available for review for any physical therapy appointments to include in July 2020. 

Remand by the Board in the AMA is proper for the correction of duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors). 38 C.F.R. § 20.802 (a). In this case, notice the Veteran was attending physical therapy was of record prior to the issuance of the October 2020 decision on appeal. Failure to obtain these outstanding records is a pre-decisional duty to assist error warranting remand. 

In doing so, the Board acknowledges the Veteran asserted attending physical therapy for all of his disabilities during the September 2024 Board hearing. However, the evidence of record prior to the issuance of the decision on appeal only indicates he was receiving treatment for his left lower extremities, not his right knee. As such remand of entitlement to a rating in excess of 10 percent for a right knee strain to await the receipt of these records is not warranted. Moreover, while VA treatment records were submitted by the Veteran in September 2024 and October 2024, they do not discuss any treatment during the period on review and do not show treatment from a physical therapist. 

The matters are REMANDED for the following action:

1. Obtain the Veteran's VA physical therapy treatment records for the period from May 2019 through October 2020. If required, ask the Veteran to complete a VA Form 21-4142 for any outside physical therapists he was directed to by order of his VA providers. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile.

 

 

Laura E. Collins

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Conti, S.

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. 
 action:

1. Obtain the Veteran's VA physical therapy treatment records for the period from May 2019 through October 2020. If required, ask the Veteran to complete a VA Form 21-4142 for any outside physical therapists he was directed to by order of his VA providers. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile.

 

 

Laura E. Collins

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Conti, S.

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.