Citation Nr: 18150700 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-45 457 DATE: November 15, 2018 REMANDED The issue of entitlement to a higher initial rating for left knee patellofemoral pain syndrome, currently evaluated as 10 percent disabling, is remanded. The issue of entitlement to a higher initial rating for right knee patellofemoral pain syndrome, currently evaluated as 10 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1993 to December 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The July 2015 rating decision granted service connection for the disabilities at issue, and assigned a noncompensable initial rating for each, effective from July 25, 2014. In an August 2016 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a 10 percent initial rating, each, for the Veteran’s left knee patellofemoral pain syndrome and right knee patellofemoral syndrome, effective July 25, 2014. As the increases did not satisfy the appeals in full, the issues remain on appeal and have been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue rendered her unemployable prior to December 18, 2017. Accordingly, the Board concludes that a claim for a TDIU, prior to December 18, 2017, has not been raised. 1. Entitlement to Increased Ratings for Bilateral Patellofemoral Pain Syndrome The Veteran seeks higher initial ratings for her service-connected bilateral patellofemoral pain syndrome. The Veteran was provided a VA knee and lower leg conditions examination in March 2017. The RO, however, has not readjudicated the Veteran’s claims since the March 2017 VA examination. As pertinent evidence has been received since the October 2016 supplemental statement of the case, the AOJ must readjudicate the Veteran’s claims for entitlement to higher initial ratings for bilateral patellofemoral pain syndrome giving consideration to all evidence currently of record. 38 C.F.R. § 19.31 (2017). The Board recognizes that, although the Veteran’s substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because this additional evidence was obtained by VA and was not submitted by the Veteran. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration). This provision only applies to evidence submitted by the Veteran. Therefore, the issues must be remanded to allow for AOJ consideration of the VA examination. The matters are REMANDED for the following action: Review the claims file, to include consideration of all additional evidence received or record since the most recent October 2016 supplemental statement of the case, to include the March 2017 VA examination report. After conducting any additional indicated development, readjudicate the Veteran’s claims for entitlement to a higher initial rating for left knee patellofemoral pain syndrome, currently evaluated as 10 percent disabling and entitlement to a higher initial rating for right knee patellofemoral pain syndrome, currently evaluated as 10 percent disabling. If any benefit sought remains denied, furnish the Veteran and her representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel