Citation Nr: 1802867	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  08-32 942	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to an increased evaluation in excess of 10 percent for right knee tenosynovitis.

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


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

L. Nelson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1975 to June 1976.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 decision of the San Juan, the Commonwealth of Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied increased ratings for the Veteran's service-connected right knee disabilities.  

In February 2010, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing.  The Veterans Law Judge who previously held the Travel Board hearing left employment at the Board.  Although the Veteran was offered the opportunity to attend another hearing, he has declined.  38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017).

This case was before the Board in September 2011, September 2016, and most recently, June 2017.  Each time it was remanded for further evidentiary development.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Regrettably, another remand is required to ensure the due process of the Veteran's appeal. 

Under 38 C.F.R. §19.31, the agency of original jurisdiction will furnish a Supplemental Statement of the Case (SSOC) if, pursuant to a remand by the Board, it develops additional evidence.  38 C.F.R. §§ 19.31(c), 19.38 (2017).  

A Supplemental Statement of the Case is a document prepared by the agency of original jurisdiction to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior Supplemental Statement of the Case.  38 C.F.R. § 19.31.  There is no legal authority for a claimant to waive, or the RO to suspend, this requirement (contrast 38 C.F.R. §§ 19.31(c) and 19.38 with 38 C.F.R. § 20.1304(c), where legal authority does allow for waiver of initial RO review of pertinent evidence submitted by the claimant after certification of the appeal to the Board; see also Section 501 of the Camp Lejeune Act of 2012).

When the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a supplemental statement of the case (SSOC), it must prepare an SSOC addressing that evidence.  38 C.F.R. § 19.31(b)(1) (2017).  Further, when evidence is received prior to the transfer of a case to the Board, an SSOC must be furnished to the Veteran and his or her representative as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to an issue on appeal.  38 C.F.R. § 19.37 (a) (2017).   As noted above, there is no legal authority for a claimant to waive, or the RO to suspend, this requirement.  

Here, the Board remanded the case in June 2017 for a VA examination to ascertain the severity of the Veteran's right knee disability.  In July 2017 an in-person VA examination was performed.  The report of that examination, and a medical opinion, has been associated with the Veteran's file.  However, no SSOC has been issued.  Thus, a remand is required so that an SSOC may be issued.

Accordingly, the case is REMANDED for the following action:

1. Readjudicate the issues on appeal, to include consideration of the relevant medical evidence received following the September 2016 SSOC and the June 2017 Board remand. 

If any benefits sought are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for the Veteran and his representative to respond before the case is returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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).