Citation Nr: 21064236
Decision Date: 10/19/21	Archive Date: 10/19/21

DOCKET NO. 17-23 171
DATE: October 19, 2021

REMANDED

Entitlement to a rating in excess of 30 percent from February 1, 2019, for the service-connected left knee total knee arthroplasty (previously chondromalacia patella) is remanded.

REASONS FOR REMAND

The Veteran served on active duty with the United States Navy from June 1978 to June 1982. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2016 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).  The Veteran filed a timely appeal regarding his left knee chondromalacia in May 2017, requesting a hearing. While the appeal was pending, the Veteran submitted evidence that he had a total left knee replacement in December 2017. In January 2018, the RO issued a rating decision granting a 100 percent temporary evaluation for total left knee arthroplasty (previously chondromalacia patella). Thereafter, a 30 percent rating was assigned for residuals of the knee replacement from February 1, 2019, under the criteria of 38 C.F.R. § 4.71a, DC 5055. The Veteran testified at a Board videoconference hearing before the undersigned in October 2019. 

When this case was last before the Board in March 2020, it was remanded for additional development. The case has now been returned to the Board for further appellate consideration. 

The Board observes that since the AOJ last considered the increased rating claims for the Veteran's service-connected left knee disability in a January 2021 Supplemental Statement of the Case (SSOC), pertinent evidence has been associated with the record on appeal. Such evidence includes two VA examinations conducted in February and May 2021, which include examinations conducted on the Veteran's left knee. Because the AOJ has not yet considered this additional evidence and because the Veteran has not waived initial AOJ consideration of this additional evidence, a remand is necessary. 38 C.F.R. § 20.1305 (providing that any pertinent evidence submitted by the Veteran must be referred to the RO for review, unless this procedural right is waived by the Veteran); see also 38 C.F.R. §§ 19.31, 19.37, 20.1305 (providing for the issuance of a Supplemental Statement of the Case where additional pertinent evidence is received after the issuance of a Statement of the Case or a prior Supplemental Statement of the Case).

This matter is REMANDED for the following action:

1. Obtain and associate with the claims file VA treatment records dated July 2020 to the present.

2. Adjudicate the issue of an increased rating in excess of 30 percent from February 1, 2019, for the service-connected left knee total knee arthroplasty, with consideration of the February and May 2021 VA examinations and any other pertinent evidence added to the file after the January 2021 SSOC. 

3. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review.

 

 

Jenna Brant

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Townsend, 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.