Citation Nr: 21062498
Decision Date: 10/07/21	Archive Date: 10/07/21

DOCKET NO. 17-16 043
DATE: October 7, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded.

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

Entitlement to total disability based upon individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1969 to January 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In February 2019 and June 2020, the Board remanded the case to the RO for additional development.  

1. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded.

2. Entitlement to a rating in excess of 10 percent for residuals of right knee meniscectomy is remanded.

3. Entitlement to total disability based upon individual unemployability (TDIU) is remanded.

The last Supplemental Statement of the Case (SSOC) was issued in November 2019.  Since that time, VA has added additional evidence relevant to the issues on appeal, namely VA treatment records and a new VA examination.  Appellants such as the Veteran are entitled to initial review by the Agency of Original Jurisdiction (AOJ), here the RO, of evidence added to the file.  See 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1305.  The Board may not be the first to consider new evidence, with limited exception such as when AOJ review of the evidence is waived.  While waiver of AOJ review may in some cases be presumed for evidence submitted by the Veteran, waiver is not presumed for evidence added to the file by VA.

The Board advised the Veteran in an August 2021 letter of his right to either have the AOJ initially review the new VA treatment records or waive that right and allow the Board to review the evidence and issue a decision. The letter also advised the Veteran if he failed to submit a waiver in 45 days, the Board would assume that he did not wish to have the Board decide the appeal at this time.  Instead, the Board would remand the appeal to the AOJ to issue a decision after initial review of the new evidence. The letter included an election form which allowed the Veteran to either request a review by the AOJ or a waiver of first review by the AOJ.

The Veteran has not returned the election form or otherwise indicated in writing whether he wanted a remand or a waiver allowing the Board to decide the claim. As there is no written waiver by the Veteran allowing the Board to first review the new VA treatment records and VA examination and adjudicate the claim, the appeal must be remanded so that an SSOC may be issued where the AOJ considers all evidence of record

The matters are REMANDED for the following action:

Issue a Supplemental Statement of the Case to the Veteran and his representative.  After they have been provided an adequate period ot time in which to respond, the case should be returned to the Board for further appellate consideration.

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Russell P. Veldenz, 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.