Citation Nr: 18149658 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 12-26 794 DATE: November 13, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an upper respiratory disability, to include a sinus disability, is remanded. Entitlement to service connection for residuals of a concussion is remanded. Entitlement to service connection for headaches, to include migraines, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to service-connected disability, is remanded. Entitlement to an evaluation in excess of 20 percent for anterior and posterior instability of the left knee is remanded. Entitlement to an evaluation in excess of 10 percent for medial and lateral instability of the right knee is remanded. Entitlement to higher evaluations for patellofemoral syndrome with degenerative joint disease of the right knee, rated as noncompensable prior to July 16, 2012, and as 10 percent disabling from July 16, 2012, is remanded. Entitlement to higher evaluations for patellofemoral syndrome with degenerative joint disease of the left knee, rated as noncompensable prior to July 16, 2012, and as 10 percent disabling from July 16, 2012, is remanded. Entitlement to higher evaluations for chronic right ankle sprains with degenerative joint disease, rated as noncompensable prior to July 16, 2012, and as 10 percent disabling from July 16, 2012, is remanded. Entitlement to higher evaluations for chronic left ankle sprains with degenerative joint disease, rated as noncompensable prior to July 16, 2012, and as 10 percent disabling from July 16, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to May 1977, and from April 1978 to February 1987. This case was previously before the Board in September 2016. The Board acknowledges that this September 2016 decision also remanded the issues of entitlement to increased evaluations for left elbow bursitis, left shoulder rotator cuff tendonitis, degenerative joint disease of the cervical spine status post fusion, and degenerative joint disease of the lumbar spine. Specifically, with respect to these issues, the Board directed that the RO issue a Statement of the Case, and then return these issues to the Board only if an adequate and timely substantive appeal was filed. However, since the Board’s September 2016 decision, additional records have been added to the record showing that the issues of entitlement to increased evaluations for left elbow bursitis, left shoulder rotator cuff tendonitis, degenerative joint disease of the cervical spine status post fusion, and degenerative joint disease of the lumbar spine were addressed in a January 2016 Statement of the Case. Although the Veteran filed a timely Notice of Disagreement in March 2016, he specified that the only issue from the January 2016 Statement of the Case he sought to appeal was the issue of entitlement to service connection for peripheral neuropathy of the right and left lower extremities. As such, the issues of entitlement to increased evaluations for left elbow bursitis, left shoulder rotator cuff tendonitis, degenerative joint disease of the cervical spine status post fusion, and degenerative joint disease of the lumbar spine are not currently before the Board. The Veteran seeks entitlement to service connection for bilateral hearing loss, an upper respiratory disability, residuals of a concussion, migraine headaches, peripheral neuropathy of the right lower extremity, and peripheral neuropathy of the left lower extremity; as well as entitlement to higher evaluations for anterior and posterior instability of the left knee, anterior and posterior instability of the right knee, patellofemoral syndrome with degenerative joint disease of the right knee, patellofemoral syndrome with degenerative joint disease of the left knee, chronic sprains with degenerative joint disease of the right ankle, and chronic sprains with degenerative joint disease of the left ankle. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The Board’s September 2016 Remand directed the RO to obtain additional VA treatment records, ask the Veteran to authorize the release of any private treatment records, and provide the Veteran with additional VA examinations. After completing the above actions, the RO was directed to readjudicate the issues remaining on appeal. Pursuant to the Board’s Remand, following the requested development, the RO readjudicated these issues in a June 2018 Supplemental Statement of the Case. However, since that time, a voluminous amount of VA records have been added to the record in conjunction with the development of other claims filed by the Veteran which are not presently before the Board. These VA treatment records include VA treatment records dated from November 2016 to October 2018 documenting ongoing treatment for headaches, bronchitis, sleep apnea, history of concussion, allergic rhinitis, chronic sinusitis, a history of smoking, difficulty hearing, nasal congestion, and arthralgias of the bilateral knees and ankles. Additionally, the Veteran was provided with various VA examinations in July 2018 and October 2018, to include two VA Back (Thoracolumbar Spine) Conditions Disability examinations which specifically addressed whether there was radiculopathy and/or other neurological abnormalities of the lower extremities. Significantly, this new and relevant evidence, added to the record since the most recent Supplemental Statement of the Case in June 2018, was not reviewed by the Agency of Original Jurisdiction (AOJ). Although initial AOJ review is automatically waived for evidence submitted by the Veteran or his representative when the VA Form 9 is received after February 2, 2013, the relevant VA Forms 9 in this case were submitted in August 2012. Moreover, the automatic waiver does not apply to VA-generated evidence, such as VA examination reports or VA treatment records not submitted by the Veteran. 38 U.S.C. § 7105(e) (West 2014). Waiver of a Supplemental Statement of the Case is only applicable to evidence submitted by the Veteran or his representative. See 38 C.F.R. § 20.1304. As such, these claims must be remanded for AOJ review of the newly received evidence. The matters are REMANDED for the following action: Following any additional development deemed appropriate (to include additional VA medical opinions) based on the new evidence added to the record since issuance of the June 2018 Supplemental Statement of the Case, readjudicate the issues on appeal. In doing so, consider all relevant evidence added to the claims file since the most recent June 2018 Supplemental Statement of the Case, to include all VA treatment records relevant to the Veteran’s claims. If any benefit sought is not granted, then the Veteran should be furnished with another Supplemental Statement of the Case, with copy   to the Veteran’s representative, and afforded an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel