Citation Nr: 18155446 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-03 058 DATE: December 4, 2018 REMANDED Entitlement to service connection for left carpal tunnel syndrome is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic infections of the right eye is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension is remanded. Entitlement to an increased rating in excess of 10 percent for left knee patellofemoral syndrome with osteoarthritis is remanded. Entitlement to an increased rating in excess of 10 percent for right knee patellofemoral syndrome with osteoarthritis is remanded. Entitlement to a compensable rating for left eye epiretinal membrane with chorioretinal scar is remanded. Entitlement to a compensable rating for bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1995 to January 1999. This case comes to the Board of Veterans' Appeals (Board) on appeal from the February 2013 and January 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran's claims on appeal, the Board notes that evidence has been associated with the record after the issuance of the last Supplemental Statement of the Case (SSOC) in March 2017. In this regard, it appears that the RO independently developed evidence that is relevant to the Veteran's claims by virtue of recently obtained VA treatment records and a January 2018 VA examination. These records, that appear to have been obtained and associated with the claims file, detail the Veteran's treatment for his claimed conditions shown in his last SSOC. As such, the Board finds that these records are pertinent to the Veteran's claims. The Board observes that that section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. 7105 by adding new paragraph (e), has addressed new procedures for claims in which new evidence was 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, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Therefore, such claims should not be remanded solely for consideration of such new evidence without a request from the Veteran. In this case, the Veteran's appeal was perfected in January 2016, after the February 2, 2013 date, and thus, this provision would normally be applicable to the instant case. However, VA has not interpreted the aforementioned amendment to extend to evidence that was not submitted by the Veteran, such as evidence that was suggested by a submission, but gathered separately pursuant to the duty to assist. The Veteran did not submit the evidence in question (i.e. the VA treatment records and VA examination report). Rather, this evidence was developed by VA based upon 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 agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a SSOC reviewing that evidence. 38 C.F.R. 19.31 (b)(1). Further, as in the instant case, when 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). As such, in order to afford the Veteran his full procedural rights, on remand, the AOJ must consider and address all of the evidence of record including previously obtained VA and treatment records in an appropriate SSOC. See 38 C.F.R. 19.31. The matters are REMANDED for the following action: 1. Appropriate efforts must be made to obtain all available VA treatment records that have not already been associated with the record. (Continued on the next page)   2. Any additional development suggested by the evidence must be undertaken. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel