Citation Nr: 21003003 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-26 224 DATE: January 19, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for left knee strain with degenerative joint disease prior to June 4, 2019, and in excess of 30 percent for total left knee arthroplasty as of August 1, 2020, is remanded. Entitlement to an initial rating in excess of 10 percent for left hip strain is remanded. Entitlement to an initial rating in excess of 10 percent for right hip strain is remanded. Propriety of the separate rating assigned for left hip limitation of extension, evaluated as noncompensably disabling as of November 19, 2019, is remanded. Propriety of the separate rating assigned for right hip limitation of extension, evaluated as noncompensably disabling as of November 19, 2019, is remanded. Propriety of the separate rating assigned for left hip limitation of abduction, evaluated as noncompensably disabling as of November 19, 2019, is remanded. Propriety of the separate rating assigned for right hip limitation of abduction, evaluated as noncompensably disabling as of November 19, 2019, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2013 by a Department of Veterans Affairs (VA) Regional Office. In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2018, the Board remanded the Veteran’s claims for higher initial ratings for left knee strain with degenerative joint disease, right hip strain, and left hip strain, and his claim for a TDIU for additional development. While on remand, a June 2019 rating decision recharacterized the Veteran’s left knee disability as total left knee arthroplasty, and assigned a temporary total rating as of June 4, 2019, and a 30 percent rating as of August 1, 2020. Thus, the Board has recharacterized such issue as shown on the title page of this decision. Additionally, a July 2020 rating decision awarded separate ratings for left and right hip limitation of extension and abduction, evaluated as noncompensably disabling as of November 19, 2019. While the Veteran did not enter a notice of disagreement as to the propriety of the assigned effective date or ratings, such matters are part and parcel of his claims for higher initial ratings for left and right hip strain. Thus, the Board has assumed jurisdiction over such issues. The case now returns for further appellate review. 1. Entitlement to an initial rating in excess of 10 percent for left knee strain with degenerative joint disease prior to June 4, 2019, and in excess of 30 percent for total left knee arthroplasty as of August 1, 2020. 2. Entitlement to an initial rating in excess of 10 percent for left hip strain. 3. Entitlement to an initial rating in excess of 10 percent for right hip strain. 4. Propriety of the separate rating assigned for left hip limitation of extension, evaluated as noncompensably disabling as of November 19, 2019. 5. Propriety of the separate rating assigned for right hip limitation of extension, evaluated as noncompensably disabling as of November 19, 2019. 6. Propriety of the separate rating assigned for left hip limitation of abduction, evaluated as noncompensably disabling as of November 19, 2019. 7. Propriety of the separate rating assigned for right hip limitation of abduction, evaluated as noncompensably disabling as of November 19, 2019. 8. Entitlement to a TDIU. The aforementioned claims were most recently adjudicated by the Agency of Original Jurisdiction (AOJ) in a supplemental statement of the case and associated rating decision issued on July 20, 2020. However, on July 23, 2020, the Veteran underwent additional VA examinations of his left knee and bilateral hip disabilities, which also address the functional impact associated with such disabilities. The case was certified to the Board on August 31, 2020. However, when the AOJ 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 supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case 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). Accordingly, as the evidence added to the file since the July 2020 supplemental statement of the case and associated rating decision is pertinent to the issues on appeal, the claims must be returned to the AOJ for consideration of such newly received evidence. Additionally, the October 2018 remand, the Board directed that, in light of the fact that the Veteran’s representative raised the issue of whether extra-schedular consideration was warranted for the Veteran’s left knee and bilateral hip disabilities, the AOJ should consider whether extra-schedular referral to the Director of Compensation Service is warranted in the readjudication of such claims. However, the July 2020 supplemental statement of the case is void of such consideration. Thus, upon remand, such should be accomplished. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on a veteran the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Accordingly, the matters are REMANDED for the following action: After conducting any necessary development, the Veteran’s claims should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the supplemental statement of the case on July 20, 2020, which includes VA examinations of his left knee and bilateral hips conducted on July 23, 2020. In connection with the readjudication of the Veteran’s initial rating claims, the AOJ should consider whether extra-schedular referral to the Director of Compensation Service is warranted. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.