Citation Nr: 21062194
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 18-38 616A
DATE: October 6, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent for left hip, limitation of extension is remanded.

Entitlement to an initial rating in excess of 10 percent for right hip, limitation of extension is remanded.

Entitlement to an initial rating in excess of 10 percent for left hip, limitation of flexion is remanded.

Entitlement to an initial rating in excess of 10 percent for left hip, limitation of flexion is remanded.

Entitlement to a rating in excess of 10 percent for right knee residuals of medial meniscus tear is remanded.

Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded.

Entitlement to service connection for sleep apnea is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from July 1988 to August 1997. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by the Agency of Original Jurisdiction (AOJ).

In April 2021, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.

Here, the Veteran was issued a Statement of the Case (SOC) in June 2018.  However, since the issuance of SOC, additional information in the form of VA contract examinations dated September 2019 and August 2021, and lay statements have been associated with the claims folder.  

The additional evidence is pertinent to the Veteran's increased rating issues on appeal and have not been considered by the Agency of Original Jurisdiction (AOJ) as required under 38 C.F.R. § 19.31(b)(1).  

The Board notes that initial AOJ review is automatically waived for evidence submitted by the Veteran or his representative if the Veteran's appeal to the Board is dated after February 2, 2013, as it is in this case where the appeal was certified in July 2019.  However, this automatic waiver does not apply to VA-generated evidence, such as VA contract examinations and medical records that were not submitted by the Veteran. 38 U.S.C. § 7105(e).  Further, waiver of the right to a SSOC that considers additional evidence is only applicable to evidence submitted by the Veteran or his representative. 38 C.F.R. § 20.1305. 

Accordingly, the claims on appeal must be remanded for consideration of the additional evidence and issuance of a SSOC. See 38 C.F.R. §§ 19.31, 19.37.

The matters are REMANDED for the following action:

Review the record and any newly added evidence including VA contract examinations associated with the claims file following the issuance of the June 2018 SOC, and readjudicate the claims on appeal. If the benefit sought on appeal remains denied, the agency of original jurisdiction should provide the Veteran and his representative with a SSOC.

 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. A., 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.