Citation Nr: 21063931 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-01 334 DATE: October 18, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for service-connected stress fracture left tibia is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected left knee osteoarthritis, instability is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected left knee osteoarthritis, limitation of flexion is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected right knee osteoarthritis (claimed as right leg pain) is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected right knee osteoarthritis, limitation of extension is remanded. Entitlement to a compensable evaluation for service-connected right knee osteoarthritis, limitation of flexion is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1981 to August 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). Initially, the Board will address the rather complicated procedural history of the issues presently before the Board. In a November 2011 claim, the Veteran filed for service connection for a left leg fracture, and right leg pain. In a June 2012 rating decision, service connection for stress fracture left tibia was granted, and the Veteran did not appeal this decision. Service connection for the right leg pain was denied in an October 2012 rating decision, and the Veteran appealed this denial to the Board. Service connection for right leg pain was first remanded by the Board in November 2013, and ultimately denied in a March 2015 decision. In June 2015, the Veteran filed for an increased rating claim for the service-connected left tibia, and for service connection for the bilateral knees. These claims were all denied in a November 2015 rating decision, and the Veteran filed a notice of disagreement in January 2016. Concurrently, the Veteran appealed the March 2015 Board decision denying service connection for the right leg pain to the United States Court of Appeals for Veterans Claims (Court), and in February 2016 the Court issued a Joint Motion for Remand (JMR) as the Board had erred in relying on an opinion that did not address aggravation. In the interest of judicial efficiency, these issues presently on appeal were merged, and in July 2016 the Board remanded to obtain an opinion addressing aggravation for the right leg pain claim, and for a Statement of the Case for the remaining claims. An SOC was issued in July 2016, and the Veteran filed a VA Form 9 appealing the decision to the Board in September 2016. Before returning to the Board, however, in a March 2017 rating decision, service connection for right knee osteoarthritis (claimed as right leg pain), and service connection for right knee osteoarthritis, limitation of extension and flexion were granted. In an August 2017 rating decision, service connection for left knee osteoarthritis, instability and limitation of flexion were granted. The Veteran successfully appealed the evaluation of these claims to the Board. Meanwhile, the increased rating claim for the service-connected left tibia returned to the Board in November 2018 where it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Again, in the interest of judicial efficiency, that claim has been merged with the increased rating claims for the bilateral knees for a second time. However, the Board notes that evidence was added to the claims file that was not previously considered by the agency of original jurisdiction (AOJ). The Board sent a letter in July 2021 to the Veteran and their representative explaining that they have a right to have the AOJ review this evidence, and that they may waive that right as well. The letter informed them that the Veteran had 45 days from the date of the letter to respond, and if no response was received at the end of the 45-day time period, it would be assumed that the Veteran did not wish to have the Board decide the appeal at this time and the claims would be remanded to the AOJ for review. The Veteran's representative responded to this letter in August 2021, by indicating that the Veteran requested the Board remand the case for consideration of the additional evidence. Accordingly, the Board must remand the appeal to the AOJ to consider the new medical evidence of record, and for issuance a Supplemental Statement of the Case (SSOC). By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: (Continued on the next page) Adjudicate the Veteran's pending claims in light of any additional evidence added to the record following the September and December 2019 SOCs and the April 2020 SSOC. If any benefit sought on appeal remains denied, the Veteran and their representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.