Citation Nr: 21002494 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 07-17 390 DATE: January 13, 2021 REMANDED Entitlement to increased initial ratings for right knee instability, not separately rated prior to July 3, 2008; rated as 10 percent disabling as of July 3, 2008; and rated as 20 percent disabling as of December 10, 2012, is remanded. Entitlement to increased initial ratings for right knee limitation of motion, rated as 0 percent disabling prior to December 10, 2007, and as 10 percent disabling as of December 10, 2007, is remanded. Entitlement to an increased initial rating for right knee status post meniscectomy, rated as 10 percent disabling as of July 3, 2008, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1994 to July 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a November 2014 decision, the Board denied the Veteran's claims. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion for Remand (JMR), in a May 2015 Order, the Court remanded that Board decision for readjudication in accordance with the joint motion. These matters were most recently before the Board in July 2017, at which time they were remanded for further development of the record. In an October 2018 rating decision, the RO, inter alia, granted service connection for right knee residuals status post meniscectomy, and assigned a 10 percent rating effective from July 3, 2008. As this issue is part and parcel of the Veteran's claim for an increased evaluation of his right knee disability, the Board has taken jurisdiction over this issue at this time. The Board notes that while the Veteran was previously represented by a private attorney, the attorney withdrew representation in a letter received in November 2020. The attorney provided a copy of the letter to the Veteran, and the Veteran has not objected to the attorney's withdrawal of representation. As the private attorney withdrew and the Veteran has not appointed a new attorney, agent, or representative, he is currently unrepresented. In April 2010, the Veteran testified at a hearing before Veterans Law Judge (VLJ) Roberts. In November 2020, the Veteran testified at a hearing before VLJ Kramer. Transcripts of both hearing are associated with the claims file. It follows that in the present appeal, two separate hearings from two different VLJs have occurred for common issues on appeal. In such situations, VA law requires this matter will be decided by a three-member panel of VLJs, which will include the two VLJs that presided over the Veteran's Board hearings. See 38 U.S.C. § 7102 (2012); 38 C.F.R. § 20.604 (2019) (formerly 38 C.F.R. § 20.707 (2018)). Notably, at the last hearing in November 2020, the Veteran expressly waived his right to a hearing before the third member of the panel deciding this appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Unfortunately, another remand is required for the following actions: (1) to comply with the terms of the May 2015 JMR; and (2) for issuance of a supplemental statement of the case (SSOC). As an initial matter, pursuant to the terms of the May 2015 JMR and July 2017 remand directives, the Agency of Original Jurisdiction (AOJ) was directed to incorporate with the record a copy of the March 2006 rating decision from which this appeal arises. Unfortunately, aside from June 24, 2017 letter to the Veteran explaining that attempts were being made to obtain a hard copy of the March 2006 rating decision, the AOJ did not undertake any other development in this regard; and a complete copy of the March 2006 rating decision remains missing from the record. As such, on remand, the AOJ must attempt to obtain a copy of that outstanding record in accordance with Federal guidelines. The record also reflects that a large volume of relevant VA treatment records has been added to the claims file since this appeal was last adjudicated in the October 2018 SSOC. A new SSOC was not issued with consideration of the new VA treatment records. While 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal, this provision does not apply to VA-generated evidence, such as VA treatment records and VA examination reports. To date, there is no indication that the Veteran has specifically waived initial AOJ adjudication of the new VA treatment records. Therefore, a remand is required for the AOJ to consider this evidence in a SSOC. The matters are REMANDED for the following action: 1. Attempt, according to the guidelines for obtaining Federal records, to obtain a complete copy of the March 2006 rating decision from which this appeal arises, and any other hardcopy documents that have not been associated with the claims file. Attempts to obtain those documents must be made until it is determined that they are not available and further attempts to obtain them would be futile. The Veteran must be notified of any such finding and allowed the opportunity to submit any records in his possession. 2. Obtain and associate with the claims file any outstanding VA and private treatment records. 3. Then, take any additional evidence deemed necessary and readjudicate the issues on appeal, ensuring that all relevant evidence is considered. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals KEITH ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.