Citation Nr: 21002712
Decision Date: 01/14/21	Archive Date: 01/14/21

DOCKET NO. 14-32 276
DATE: January 14, 2021

REMANDED

Entitlement to a rating in excess of 60 percent for status post total left knee replacement from October 1, 2020, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from June 1978 to August 1980.  These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and have been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107.

Entitlement to a rating in excess of 60 percent for status post total left knee replacement from October 1, 2020, is remanded.

This matter was previously remanded in July 2020.  Regrettably, this matter must be remanded again to afford the Veteran required procedural due process in the form of an initial adjudication considering evidence generated by VA after the appeal was certified and transferred to the Board by the agency of original jurisdiction (AOJ).  38 U.S.C. § 7104.

In September 2020, the AOJ readjudicated the claim at issue in a Supplemental Statement of the Case.  The claim was certified on November 3, 2020, and transferred to the Board on November 5, 2020.  However, the AOJ scheduled the Veteran for a VA examination for her bilateral knee disorders on November 10, 2020.  As this evidence is relevant to the Veteran’s claim at issue, and applicable law mandates that all evidence of record be subject to one review on appeal to the Secretary of VA, the Board sent the Veteran and her representative a letter requesting a waiver of initial AOJ adjudication on November 23, 2020.  38 U.S.C. § 7104(a).  To date, neither the Veteran nor her representative has responded to the request for a waiver.  Therefore, the Board has no option but to remand the matter again so that the November 2020 VA examination report may be considered by the AOJ in the first instance.

The matters are REMANDED for the following action:

1. Readjudicate the claim in consideration of the VA examination report generated in November 2020.  Thereafter, if the claim remains denied, return the matter to the Board for review.

 

 

ANTHONY C. SCIRÉ, JR

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Reed, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.