Citation Nr: 21070721
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 17-43 268
DATE: November 24, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent prior to August 8, 2017 for a right knee disability, and in excess of 30 percent from October 1, 2018, is remanded.   

REASONS FOR REMAND

The Veteran served on active duty in the United States Air Force from September 1971 to April 1974.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In his August 2017 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge.  However, the Veteran, through his attorney, cancelled this request in February 2021 correspondence.  Therefore, the request for a hearing is considered withdrawn.  38 C.F.R. § 20.704(e).  

During the pendency of the appeal, the Veteran underwent a right total knee replacement.  A September 2017 rating decision granted the Veteran a temporary total disability rating for the right knee from August 8, 2017 to September 30, 2018, with a 30 percent rating assigned from October 1, 2018.  The Veteran's increased rating claim has been recharacterized accordingly, with the exclusion of the period in which the Veteran was in receipt of the maximum benefit allowable.  See AB v. Brown, 6 Vet. App. 35 (1993).

Subsequent to the July 2017 statement of the case (SOC), additional VA medical records pertinent to the Veteran's increased rating claim were associated with the claims file.  In this regard, the Veteran underwent VA knee and lower leg conditions examinations in November 2020 and July 2021 and the examination reports were subsequently associated with the record.  However, the RO did not readjudicate the claim or issue a SSOC as required by 38 C.F.R. §§ 19.31, 19.37.  As such, remand is required for the RO to readjudicate the increased rating claim for the right knee, with specific consideration of any additional evidence received since the July 2017 SOC.  

Accordingly, the matter is REMANDED for the following action:

Readjudicate the Veteran's increased rating claim for the right knee with consideration of all evidence associated with the claims file since the issuance of the July 2017 SOC.  If any benefit sought on appeal remains denied, issue a SSOC and allow the appropriate time for response.  Then, return the case to the Board for further appellate review.

 

 

J. NICHOLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Melissa Barbee, 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.