Citation Nr: 18154510 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-59 041 DATE: November 30, 2018 REMANDED 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome with shin splints is remanded. 3. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome with shin splints is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1995 to January 1999. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2013 Department of Veterans Affairs (VA) rating decision. In May 2017 these matters were remanded for further development. Entitlement to service connection for a neck disability, to a rating in excess of 10 percent for right knee patellofemoral syndrome with shin splints, and to a rating in excess of 10 percent for left knee patellofemoral syndrome with shin splints is remanded. Evidence pertaining to the issues on appeal has been associated with the record following the issuance of the last Supplemental Statement of the Case (SSOC) in these matters in April 2018. (It appears that that the agency of original jurisdiction (AOJ) arranged for further development of pertinent evidence, including VA treatment records and a November 2018 VA examination report). Under a Public Law (PL) 112-154 (Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012) amendment to 38 U.S.C. § 7105 (adding new paragraph (e)), there are new procedures for handling claims when new evidence is received after the last SSOC without a waiver of AOJ consideration. Under that provision, if new evidence is submitted with, or after, a Substantive Appeal received on or after February 2, 2013, it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration; such claims would not be remanded solely for consideration of the new evidence without an explicit request by the Veteran. Here, as the Veteran’s substantive appeal was received in November 2016 (after February 2, 2013) the new provisions would apply. However, 38 U.S.C. § 7105(e) has not been interpreted as extending to evidence that was not submitted by the Veteran, but added to the record by VA. The Veteran did not submit the evidence in question (the VA treatment records and VA examination report). This evidence was obtained by VA (pursuant to its duty to assist). The appellate scheme set forth in 38 U.S.C. § 7104 (a) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a supplemental statement of the case (SSOC), it must prepare a SSOC reviewing that evidence. 38 C.F.R. § 19.31 (b)(1). If, as in the instant case, evidence is received prior to the transfer of a case to the Board a SSOC must be furnished to the veteran and his or her representative, if any (as provided in 38 C.F.R. § 19.31), unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37 (a). There is no legal authority for a claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304 (c). Moreover, in its prior remand, the Board specifically directed the AOJ to consider all additional evidence received since the last SSOC and provide the Veteran and his representative with a new SSOC. As this was not done, corrective action is necessary. The matters are REMANDED for the following action: 1. Associate with the record and further reports of VA treatment or evaluations the Veteran received for the disabilities on appeal (any pertinent VA medical records that remain outstanding). 2. Then arrange for any further development suggested by the evidence received, and readjudicate the matters on appeal, providing the Veteran an SSOC addressing each claim on appeal that remains denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel