Citation Nr: 18141530
Decision Date: 10/10/18	Archive Date: 10/10/18

DOCKET NO. 15-31 466A
DATE:	October 10, 2018
REMANDED
Entitlement to a rating in excess of 10 percent for residuals of a torn meniscus, right knee, prior to January 3, 2012, is remanded.
Entitlement to a rating in excess of 10 percent for degenerative joint disease, right knee, prior to January 3, 2012, is remanded. 
Entitlement to a rating in excess of 30 percent for status post total right knee replacement, since March 1, 2013, is remanded. 
REASONS FOR REMAND
The Veteran served on active duty from August 1969 to May 1971. 
(a) Entitlement to a rating in excess of 10 percent for residuals of a torn meniscus, right knee, prior to January 3, 2012; (b) Entitlement to a rating in excess of 10 percent for degenerative joint disease, right knee, prior to January 3, 2012; and (c) Entitlement to a rating in excess of 30 percent for status post total right knee replacement, since March 1, 2013 are remanded.
The Board finds that these matters must be remanded to allow the RO to issue a supplemental statement of the case (SSOC) adjudicating the entire period of appellate review on appeal.
A statement of the case (SOC) was issued in August 2015 adjudicating the Veteran’s right knee increased-rating claims for the time period from April 5, 2010.  An SSOC was subsequently issued in October 2017 adjudicating the time period from January 3, 2012.  However, closer inspection of the claims file shows that the appeal actually arises from the Veteran’s claim for an increased rating filed in February 2006.
Following a final November 1999 rating decision denying entitlement to an increased rating for his right knee, the Veteran filed a claim to reopen in February 2006.  In a May 2006 rating decision, the RO granted a separate 10 percent rating for degenerative joint disease, right knee, effective February 27, 2006 (his date of increased rating claim).  In a January 2007 rating decision, the RO readjudicated the Veteran’s claim and denied an increased rating for his residuals of a torn meniscus of the right knee and for his now service-connected degenerative joint disease of the right knee. 
In August 2006, the Veteran filed a statement requesting “reconsideration of request for increase in my right knee condition.”  In March 2007, the Veteran filed another statement requesting “reconsideration of your decision.”  These statements are consistent with the requirements for a valid and timely notice of disagreement (NOD). See 38 C.F.R. § 20.201 (in effect prior to March 24, 2015).  In May 2008, the RO issued another rating decision again denying an increased rating for his right knee. 
This sequence of events shows that finality never attached to the Veteran’s claim for increase, filed in February 2006.  Specifically, although the RO issued a rating decision in May 2008 readjudicating the Veteran’s claims for increase, no SOC was issued following the March 2007 NOD. Thus, the appeal is considered to have been pending since the initial receipt of the claim in February 2006. 
On this basis, the August 2015 SOC and October 2017 SSOC, which only adjudicated the time period since April 5, 2010, did not consider the evidence of record pertaining to the severity of the Veteran’s right knee disability prior to that date.  The Veteran would be prejudiced should the Board proceed at this time to consider such evidence in the first instance.  See 38 U.S.C. § 7104(a); Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
 The matters are REMANDED for the following action:
Readjudicate the claims on appeal, specifically including a review of evidence beginning in February 2006 to the present.
If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review.
 
CAROLINE B. FLEMING
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A.M. Clark, Counsel