Citation Nr: 18152740 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-35 632 DATE: November 26, 2018 REMANDED Entitlement to a higher initial rating for left knee patella femoral syndrome with degenerative arthritis (previously characterized as left knee condition), rated as 10 percent disabling from February 9, 2012, is remanded. Entitlement to a higher initial rating for left knee instability and recurrent subluxation associated with left knee patella femoral syndrome with degenerative arthritis, rated as 10 percent disabling from February 7, 2014, to June 27, 2016, is remanded. Entitlement to a higher initial rating for left knee limitation of extension associated with service-connected left knee patella femoral syndrome with degenerative arthritis, rated as noncompensable from February 7, 2014, to June 27, 2016, is remanded. Entitlement to an increased rating for bilateral pes planus, rated as 30 percent disabling from February 9, 2012, is remanded. Entitlement to a compensable initial rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Marine Corps from May 1980 to May 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) dated October 2012 (granting increased rating for bilateral pes planus from noncompensable to 10 percent), November 2012 (granting service connection, and assigning noncompensable initial rating, for left knee disability), and June 2016 (granting service connection, and assigning noncompensable initial rating, for bilateral hearing loss). During the pendency of the appeal, July 2016 rating decision increased the rating for bilateral pes planus to 30 percent for the entire appeal period; assigned a higher 10 percent initial rating for left knee patella femoral syndrome with degenerative arthritis—previously characterized as left knee condition—for the entire appeal period; awarded a separate 10 percent rating for left knee instability and recurrent subluxation; and awarded a separate noncompensable rating for left knee limitation of extension). 1. These issues must be remanded because additional evidence was received after the most recent Statements of the Case and the Veteran submitted an Additional Evidence Response Form expressly stating his desire for AOJ review of the additional evidence. In this case, additional pertinent medical records, examinations, and statements were associated with the claims file after the two Statements of the Case issued on July 29, 2016: one addressing the request for a compensable initial rating for bilateral hearing loss, and the other addressing the remaining issues on appeal. As the Veteran’s substantive appeal was filed after February 2, 2013, a waiver of initial review by the agency of original jurisdiction (AOJ) of additional evidence submitted by a veteran is presumed. See 38 U.S.C. § 7105(e) (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015(e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or after the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013); 38 C.F.R. §§ 20.800, 20.1304 (2018). However, the automatic waiver presumption has not been extended to evidence that is obtained or generated by the VA, such as VA treatment records or VA examination reports not submitted by the Veteran. See 38 U.S.C. § 7105(e) (only providing for waiver of initial review by the Board “if the claimant or the claimant’s representative... submits evidence”); see also 38 C.F.R. § 20.1304. In this case, the VA sent a letter to the Veteran on October 3, 2018, notifying him that it had obtained additional evidence in support of his appeal since the July 2016 Statements of the Case. On November 7, 2018, the VA received an Additional Evidence Response Form completed by the Veteran which expressly requests that the Board remand these matters back to the AOJ for initial review of the additional evidence that was obtained in his appeals since the last Statements of the Case. Therefore, pursuant to the Veteran’s wishes, these claims must be remanded so that a Supplemental Statement of the Case addressing the additional evidence may be issued. See 38 C.F.R. §§ 19.31, 19.37. The Board notes that the Veteran did not indicate a desire for a hearing regarding any of the issues on appeal. See Appeals Correspondence (received on January 21, 2014, January 24, 2014, and September 26, 2016). If any benefit sought is not granted after AOJ readjudication with consideration of the additional evidence, and a hearing is requested after issuance of a Supplemental Statement of the Case for these matters, the AOJ should clarify, to the extent necessary, whether a hearing is desired on some or all the issues. The matters are REMANDED for the following action: 1. Readjudicate the issues on appeal based on the entirety of the evidence, including the additional evidence obtained since the July 2016 Statements of the Case. If any benefit sought is not, send the Veteran a   Supplemental Statement of the Case and provide an opportunity to respond. As warranted, return the case to the Board for further appellate review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel