Citation Nr: 1801732 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-03 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee with prepatellar bursitis (right knee disability). 2. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the left knee (left knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to January 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada which granted service connection for bilateral degenerative disease of the knees with right prepatellar bursitis with an evaluation of 10 percent and denied service connection for spinal stenosis of the thoracolumbar spine. The Veteran timely appealed the initial ratings assigned. In February 2012, the Veteran was afforded a personal hearing before a hearing officer at the RO, and in May 2014, the Veteran was afforded a personal hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. Transcripts of the hearings are of record. As the VLJ who presided at the May 2014 hearing must participate in the decision on the claim in accordance with 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707, by letter dated October 26, 2017, the Veteran was offered the opportunity for another hearing before the VLJ who would decide the case. Neither the Veteran nor his representative responded to the letter within 30 days, thus the Board will proceed with adjudication of the claim. In October 2014, the Board remanded the claim for additional development, specifically for Social Security Administration records and new VA examinations. In November 2014, the RO granted service connection for the lumbago with intervertebral disc syndrome, representing a full grant of the benefit sought on appeal. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007). See also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore the issue of service connection for low back disability is no longer before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his service connected bilateral knee disabilities are more severe than currently rated as his pain and frequency of flaring has increased. Unfortunately, his claims must again be remanded. Following the issuance of the most recent supplemental statement of the case (SSOC) dated November 2014 and the return of the case to the Board, additional relevant evidence has been associated with the Veteran's claims file, specifically a July 2017 Disabilities Benefits Questionnaire (DBQ) that was prepared in connection with his bilateral knee disabilities. This evidence has not been considered by the AOJ. In cases such as this one in which the claimant or his representative, after the AOJ received a substantive appeal, submits evidence to the AOJ or the Board for consideration in connection with the issues with which disagreement has been expressed, the evidence is subject to initial review by the Board unless it is requested that the AOJ initially review the evidence. 38 U.S.C. § 7105(e). This provision applies to cases such as this one in which the substantive appeal was filed180 days after the date of the enactment of the Camp Lejeune Act, i.e., after February 2013. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, section 501. However, this provision applies only to evidence that was submitted to the AOJ or the Board. Here, the evidence was created and associated with the claims file by VA. This provision therefore does not apply, and the case must be remanded for initial AOJ of this evidence. See Sprinkle v. Shinseki, 733 F.3d 1180, 1183-84 (Fed. Cir. 2013) (noting that veterans' claims are initially developed and adjudicated by the RO and the reviewed on appeal by the Board, and that, "[t]o ensure that claimants receive the benefit of this two-tiered review within the agency, all evidence relevant to a claim generally must be considered by the Regional Office in the first instance." Sprinkle v. Shinseki, 733 F.3d 1180, 1183-84 (Fed. Cir. 2013) (citing 38 U.S.C. §§ 7104, 7105). Accordingly, the case is REMANDED for the following action: 1. Readjudicate the claims in light of the additional evidence of record associated with the claims file since the November 2014 SSOC, to include the July 2017 DBQ. 2. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with an SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).