Citation Nr: 21068101
Decision Date: 11/09/21	Archive Date: 11/09/21

DOCKET NO. 16-17 080
DATE: November 9, 2021

REMANDED

Entitlement to an evaluation in excess of 10 percent prior to August 14, 2015, and in excess of 20 percent from August 14, 2015, for right knee instability is remanded.

Entitlement to an evaluation in excess of 30 percent for thoracic outlet syndrome is remanded.

Entitlement to an evaluation in excess of 20 percent for right ankle fracture residuals is remanded.

Entitlement to an evaluation in excess of 10 percent for right knee posttraumatic arthritis is remanded.

Entitlement to a compensable evaluation prior to January 26, 2021, and an evaluation in excess of 30 percent from January 26, 2021, for right thigh atrophy residuals is remanded.

Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1986 to October 1994.  These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2014 and April 2021 rating decisions.  

In February 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record.  In July 2019, the Board remanded these matters for additional development.

The Board notes that a January 2021 VA Form 20-0995 Supplemental Claim submitted by the Veteran was not a valid Appeals Modernization Act (AMA) opt-in pursuant to 38 C.F.R. § 3.2400(c)(2), as it was not received within 60 days of the June 2020 Supplemental Statement of the Case (SSOC).  Instead, it appears the Agency of Original Jurisdiction (AOJ) treated the January 2021 VA Form 20-0995 as a new claim for benefits.

The Board further notes that a Motion to Advance on the Docket (AOD) was filed in June 2021 due to financial hardship.  In July 2021, the Board granted the AOD Motion for good cause shown.

1. Entitlement to an evaluation in excess of 10 percent prior to August 14, 2015, and in excess of 20 percent from August 14, 2015, for right knee instability is remanded.

2. Entitlement to an evaluation in excess of 30 percent for thoracic outlet syndrome is remanded.

3. Entitlement to an evaluation in excess of 20 percent for right ankle fracture residuals is remanded.

4. Entitlement to an evaluation in excess of 10 percent for right knee posttraumatic arthritis is remanded.

5. Entitlement to a compensable evaluation prior to January 26, 2021, and an evaluation in excess of 30 percent from January 26, 2021, for right thigh atrophy residuals is remanded.

6. Entitlement to a TDIU is remanded.

Additional pertinent evidence developed by VA, including multiple VA examination reports dated in March and May 2021 for each of the service-connected disabilities on appeal as well as VA treatment records dated through May 2021, was added to the record after the issuance of the June 2020 SSOC and after the certification of the appeals to the Board in July 2020.  On remand, the evidence is referred to the AOJ for review and readjudication.  38 C.F.R. § 20.1305 (2021).

Finally, as a decision on the remanded increased rating issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined and a remand of the TDIU claim is required.

The matters are REMANDED for the following action:

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The claims on appeal must be readjudicated, taking into consideration all relevant evidence associated with the record since the June 2020 SSOC as well as recent amendments to the regulations used in evaluating the musculoskeletal system and muscle injuries.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5257, 5271).  If any benefit on appeal remains denied, an SSOC must be provided to the Veteran and his representative.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. D. Deane, 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.