Citation Nr: 1804514	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  13-04 369	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to an increased rating for lumbar strain, currently evaluated as 20 percent.

2. Entitlement to an increased rating for acromioclavicular joint separation or the right shoulder, currently evaluated as 20 percent.

3. Entitlement to an increased rating for left knee strain, currently evaluated as 10 percent.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The Veteran had active duty service from August 1996 until July 2000. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Houston, Texas. 

In October 2017 the Veteran testified at before the undersigned via videoconference; a transcript of that hearing is of record. 

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


REMAND

The Veteran's substantive appeal in regard to the issues on appeal was received in January 2013. After the issues were transferred to the Board on appeal, new evidence was obtained in regard to the issues in October 2017. The new evidence contains medical examinations in regard to the issues on appeal. This new evidence has not yet been reviewed by the AOJ.

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) (2017). Under 38 C.F.R. § 20.1304 (c) (2017), 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).

Here, the Veteran's substantive appeal was received prior to February 2, 2013. His procedural right of initial AOJ review has not been waived by the appellant or his representative, and 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, the Veteran's appeal for increased ratings in regard to his service-connected, back, right shoulder, and left knee disabilities will be remanded for appropriate action so that the above-noted evidence is appropriately addressed with a SSOC.

Accordingly, the case is REMANDED for the following action:

1. Request that the Veteran identify and secure any relevant private medical records that are not in the claims file. Associate any records identified by the Veteran with the claims file. If any records are unavailable, document their unavailability within the claims file and advise the Veteran so that he can submit any copies of the unavailable records in his possession.

2. Obtain any outstanding VA medical records and associate them with the claims file.

3. After steps 1 and 2 have been completed, readjudicate the Veteran's claims on appeal with consideration of all additional evidence associated with the claims file since the August 2017 SSOC. If any claim on appeal remains denied, provide the Veteran and his representative with an SSOC and allow an appropriate time for response before returning the matters to the Board for further adjudication, if otherwise in order.

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 (West 2014).



_________________________________________________
M. H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 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).