Citation Nr: 1756052	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  10-45 648	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Entitlement to an increased evaluation in excess of 10 percent for left knee strain. 

2. Entitlement to an increased evaluation in excess of 10 percent for right knee strain.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

G.C., Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1990 to May 1996. 

This case comes before the Board of Veteran's Appeals (Board) from a November 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

This matter was remanded by the Board in a June 2016 decision for further development, to reschedule the Veteran's hearing pursuant to her request. The requested hearing was scheduled. However, in January 2017, the Veteran conveyed her wish not to have a hearing and requested that her scheduled hearing be cancelled. 

Thereafter, the Veteran was afforded a VA examination in June 2017 to assess the current nature and severity of her claimed knee disorders. A subsequent RO adjudication or Statement of the Case is not of record.


REMAND


The Veteran seeks increased ratings for her service-connected right knee and left knee disorders. Subsequent to the most recent Supplemental Statement of the Case, issued in November 2015, additional pertinent lay and medical evidence was received by VA, including lay statements, VA medical records and a VA examination of the knees conducted in June 2017. 

When evidence is received after the transfer of a case to the Board, as is the case here, the Board will determine what action is required with respect to the additional evidence. 38 C.F.R. § 19.37 (b). Under 38 C.F.R. § 20.1304 (c), any pertinent evidence submitted following certification of an appeal to the Board must be referred to the AOJ for review, "unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral." 38 C.F.R. § 20.1304 (c). While the Board is cognizant that 38 U.S.C. § 7105 (e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a substantive appeal in cases where the substantive appeal was filed on or after February 2, 2013, see 38 U.S.C. § 7105 (e) (2012); see also VA Fast Letter 14-02 (May 2, 2014), the Board finds that an automatic waiver of jurisdiction cannot be applied in this case. Here, the Veteran's substantive appeal was received in November 2010, and therefore, the provision of automatic waiver is not applicable in this case. 

This procedural right of initial AOJ review has not been waived by the Veteran or her representative; while the Veteran was sent a 38 U.S.C. § 5103 Notice Response form, said waiver is not one of RO consideration, but rather, of a 30 day waiting period allowed for submission of any potential additional evidence in support of the Veteran's claim. Additionally, the new pertinent evidence does not guarantee that the benefits sought may be fully allowed on appeal without such referral. See 38 C.F.R. § 20.1304 (c). For these reasons, these issues will be remanded for appropriate action so that the above-noted evidence is appropriately addressed with a Supplemental Statement of the Case. 

Accordingly, the case is REMANDED for the following action:

Review all evidence added to the electronic file since the November 2015 Supplemental Statement of the Case that pertains to the claims or issues on appeal, including but not limited to VA treatment records, lay statements, representative statements and the June 2017 VA examination of record. After undertaking any additional development which may be necessary, readjudicate the claims on appeal to determine if entitlement to the benefits sought is warranted. If the benefits sought remain denied, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



_________________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).