Citation Nr: 21069599 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-19 757A DATE: November 18, 2021 REMANDED Entitlement to an initial compensable rating for left knee arthroscopy scar, associated with service-connected left knee osteochondritis dissecans, with degenerative joint disease (DJD) (left knee disability), prior to January 22, 2020, and in excess of 10 percent from that date, is remanded. Entitlement to an increased rating in excess of 40 percent for left knee disability with limitation of extension, is remanded. Entitlement to an initial rating in excess of 10 percent for left knee disability with instability, is remanded. Entitlement to an initial compensable rating for left knee disability with limitation of flexion, to include the period prior to October 25, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1986 to July 1990. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of a Regional Office/Agency of Original Jurisdiction (RO/AOJ) of the Department of Veterans Affairs (VA). In May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran waived RO consideration of any additional evidence added to his file. These matters were previously before the Board in March 2018, June 2019 and September 2020, when they were remanded for additional development. Upon review of the development completed pursuant to these remands, the Board finds there has been substantial compliance with its remand instructions as to the claims on appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Since the most recent September 2020 Board remand, an interim January 2021 rating decision, in pertinent part, granted service connection for a left foot disorder, rated noncompensable prior to November 18, 2020 and 20 percent from that date. As this represents a complete grant of the Veteran's claim of service connection for a left foot disorder, this issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In addition, a May 2021 rating decision granted an increased 40 percent rating for the Veteran's left knee disability based on limitation of extension throughout the appeal period from February 12, 2010, the date of receipt of his claim for increase. As the increased rating does not represent the maximum rating available for the left knee disability based on limitation of extension and the Veteran has not expressed satisfaction with the rating, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Following the June 2021 Supplemental Statement of the Case (SSOC) and certification and transfer to the Board, the Veteran underwent VA examinations in connection with his left knee disabilities, including arthroscopy scars, in August 2021. However, he has not been furnished a SSOC that addresses these examination reports. The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran. See 38 C.F.R. § 20.1304(c). Although initial AOJ review is automatically waived for evidence submitted by the Veteran because the Veteran's VA Form 9 is dated after February 2, 2013 (it was received June 2, 2014), the automatic waiver does not apply to VA-generated evidence. 38 U.S.C. § 7105(e). In August 2021, a waiver solicitation letter was sent to the Veteran. He was advised he had 45 days from the date of the letter to submit a waiver of AOJ consideration of the additional evidence received since the June 2021 SSOC. The did not respond. As such, the appeal as to these matters must be remanded to the AOJ for review and issuance of an updated SSOC. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. The matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records. 2. After completion of the above and any additional development deemed necessary, readjudicate the claims for entitlement to increased ratings for left knee disability based on limitation of extension, flexion and instability and left knee arthroscopy scar. If any determination is less than fully favorable, the Veteran and his attorney must be furnished with an SSOC which includes consideration of the August 2021 VA left knee and scars examination reports and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.