Citation Nr: 21071945 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-06 242A DATE: December 1, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for a right knee disability is remanded. Entitlement to an initial disability rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a total disability rating on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to October 1969. The Veteran died in January 2018. The appellant is the Veteran's surviving spouse and has been substituted for the deceased Veteran. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Board remanded the issues on appeal to schedule the Veteran for a videoconference Board hearing. In November 2015, the Veteran testified at a videoconference hearing held before Veterans Law Judge M. Hyland on the three issues on appeal, and a transcript of that hearing was associated with the claims file. In May 2016 and December 2017, the Board remanded the three issues on appeal for further development. In a May 2020 supplemental statement of the case, the RO noted that it granted a motion for substitution in April 2020. In a May 2020 rating decision, a RO assigned a 10 percent disability rating for the left knee disability effective May 1, 2012. As the 10 percent disability rating is not the maximum rating, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In May 2021, the appellant testified at a virtual hearing held before Veterans Law Judge Michael Lane on the three issues on appeal, and a transcript of that hearing was associated with the electronic claims file. All Veterans Law Judges who conduct hearings must participate in making the final determination of the claim on which testimony was received. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2021). By law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. See 38 U.S.C. § 7102(a). Thus, when an appellant or a veteran has had a personal hearing before two separate Veterans Law Judges during the appeal and these hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held. The appeal is then ready for appellate review. In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the United States Court of Appeals for Veterans Claims (the Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision unless a waiver is obtained. In this case, the appellant was advised in an August 2021 correspondence of her right to a third hearing pursuant to Arneson. By not responding to this correspondence, she chose to waive her right to the additional hearing by a third individual. Therefore, the Board may proceed without providing a third hearing in this case. At the November 2015 hearing, the Veteran testified that he received all of his treatment from the Huntington VA Medical Center. November 2015 hearing testimony, page 6. At the May 2021 hearing, the appellant testified that the Veteran had discussed getting knee replacements once his diabetes was under control. May 2021 hearing transcript, page 5. The RO last obtained records from the Huntington VA Medical Center in March 2017. The RO should obtain all records from that facility for the period from March 2017 to January 2018. The RO should also ask the appellant to identify any other treatment for the bilateral knee disabilities. The matters are REMANDED for the following action: 1. Ask the appellant to identify all treatment for the Veteran's bilateral knee disabilities and any other disability pertaining to the claim for TDIU, and obtain any identified records. Obtain the Veteran's VA treatment records from the Huntington VA Medical Center from March 2017 to January 2018. 2. After the development in 1 is completed, the RO should undertake any necessary development on the TDIU claim as warranted by the evidence of record. 3. After development above has been completed, the RO should readjudicate the appellant's claims. If any claim remains denied, the appellant should be issued a supplemental statement of the case and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals M. HYLAND Veterans Law Judge Board of Veterans' Appeals D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.