Citation Nr: 21072354
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 11-21 053
DATE: December 2, 2021

REMANDED

Entitlement to a compensable rating prior to April 2, 2021, and a rating in excess of 10 percent from April 2, 2021, for right Achilles tendon tear is remanded.

Entitlement to a compensable rating for left hamstring tear is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1985 to January 2006.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were previously remanded by the Board in May 2015 and September 2020. 

In a May 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted the claim of entitlement to service connection for a left ankle disability. This claim has been granted in full and is no longer before the Board for appellate consideration. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

The Veteran testified before a Veterans Law Judge (VLJ) at a hearing in June 2014. A transcript of that hearing is of record. In an August 2021 correspondence, the Board informed the Veteran that the presiding VLJ was no longer employed at the Board and the Veteran was offered an opportunity for a new hearing. See 38 U.S.C. § 1707; 38 C.F.R. § 20.707. The Veteran was asked to respond within 30 days, or the Board would assume he would not like a new hearing. No response has been received to date, so the Board will proceed with consideration of the Veteran's claims. 

The Board notes that in June 2021, the Veteran submitted a VA Form 20-0995, opting to have his claim on appeal reviewed under the modernized review system. Such an election would effectively withdraw the Veteran's appeal from the legacy review system, and the case would continue to be processed pursuant to the modernized review system. While appellants are legally allowed to elect post-supplemental statement of the case (SSOC) review under the modernized review system, the Veterans Benefits Administration (VBA) will only proceed with post- supplemental statement of the case election if all forms are properly executed. Specifically, VBA requires that the appropriate box in Part II of the VA Form 20-0995 be checked, identifying opt-in from SOC/SSOC. In the present case, the Veteran did not check the box indicating opt-in from SOC/SSOC on his June 2021 VA Form 20-0995. As such, his election is invalid and would not be accepted by VBA, and his case will remain in the legacy review system. 

Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claims.

The Board notes that since the most recent supplemental statement of the case in May 2021, outpatient treatment records pertaining to the Veteran's service-connected Achilles tendon and hamstring were added to the claims file in June 2021. Under applicable law, the Board may not consider newly-submitted evidence in the first instance unless the claimant has waived initial consideration by the appropriate AOJ. See 38 C.F.R. §§ 19.37, 20.1304. He has not done so. The Board notes that the provisions of 38 U.S.C. § 7105 allowing for an automatic waiver of AOJ review of evidence apply only to claims in which a substantive appeal was filed on or after February 2, 2013. The Veteran's substantive appeal was received prior to February 2, 2013, in September 2011; therefore, the provision of automatic waiver is not applicable in this case and a remand for initial AOJ consideration of the new evidence is required.

The matters are REMANDED for the following action:

Readjudicate the increased ratings claims on appeal, with consideration of all additional evidence received since the May 2021 SSOC. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he should be furnished an SSOC.  

 

K.R. FLETCHER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	AD

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.