Citation Nr: 18157529
Decision Date: 12/13/18	Archive Date: 12/12/18

DOCKET NO. 15-19 490
DATE:	December 13, 2018
REMANDED
An evaluation in excess of 10 percent for a right knee disability is remanded.
REASONS FOR REMAND
The Veteran served on active duty from January 1999 to July 2001.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran.  In this case, a TDIU was not raised by the record or asserted by the Veteran.  Accordingly, the TDIU claim is not before the Board as a component of his claim for an increased evaluation.  Id.
1. An evaluation in excess of 10 percent for a right knee disability is remanded.
Additional evidence was received after that last Agency of Original Jurisdiction (AOJ) adjudication in December 2015.  Specifically, in June 2018, VA treatment records from February 2018 were associated with the claims file.  These records were not submitted by the Veteran or his representative, and the records have a direct relevance to the issue of the evaluation of the right knee disability.  The Board cannot consider additional evidence without first remanding the case to the AOJ for initial consideration or obtaining the appellant’s waiver.  Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  A waiver request was sent to the Veteran in August 2018, however, the Veteran has not responded.  The letter informed the Veteran that if he did not reply with his choice within 45 days, the Board would remand the appeal to the AOJ.  
The matter is REMANDED for the following action:
Readjudicate the issue on appeal, considering the VA treatment records associated with the claims file since the December 2015 Supplemental Statement of the Case.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 
D. Martz Ames
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Rocktashel, Counsel