Citation Nr: 20043167
Decision Date: 06/25/20	Archive Date: 06/25/20

DOCKET NO. 15-09 452
DATE: June 25, 2020

REMANDED

Entitlement to an initial disability rating in excess of 0 percent for service-connected degenerative arthritis of the left knee, with limitation of extension, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1977 to October 1980 and from December 1981 to December 1998.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. 

This case was previously remanded by the Board in June 2018. 

The Board observes that the last SSOC was issued in October 2019. The appeal was certified to the Board in November 2019. The Board notes that pertinent, additional evidence has been added to the record since issuance of SOC and certification of the appeal to the Board. Specifically, the Veteran was afforded a VA examination of his left knee disability in January 2020. However, the AOJ has not issued a supplemental statement of the case reflecting re-adjudication of the claim on appeal in light of such evidence.

On May 5, 2020, the Board sent the Veteran and his representative a letter offering him the opportunity to waive initial AOJ consideration of that evidence. More than 45 days since the letter’s issuance has passed, and the Veteran has not responded.

In this regard, the Board points out that the appellate scheme set forth in 38 U.S.C. § 7104 (a) contemplates that all evidence will first be reviewed by the AOJ so as not to deprive the claimant of an opportunity to prevail on his claims at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Pursuant to 38 C.F.R. § 20.1304 (c), any pertinent evidence submitted to the Board by the AOJ after the certification of appeal must be referred to the AOJ for review, unless such procedural right is waived by the Veteran or his representative, or unless the Board determines that the benefits to which the evidence relates may be fully allowed on appeal without such referral. As waiver of initial AOJ review has not been submitted, nor is a waiver presumed pursuant to 38 U.S.C. § 7105 (e)(1), because the evidence was generated by VA (rather than submitted by the Veteran), remand for the AOJ to issue a SSOC reflecting consideration of this additionally received evidence is required.

The matter is REMANDED for the following action:

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1. Review the evidence added to the record since the last SSOC in October 2019, to specifically include review of the evidence cited above, and arrange for any further development suggested by the information therein. Thereafter, return the case to the Board if in order.

 

 

R. FEINBERG

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. St. Laurent, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.