Citation Nr: 21077525 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-51 066 DATE: December 30, 2021 REMANDED An initial disability rating greater than 10 percent prior to August 27, 2018 and greater than 30 percent from October 1, 2019 for the service-connected left knee strain with degenerative joint disease status post total knee replacement (left knee disability) is remanded. An initial disability rating greater than 10 percent for the service-connected right ankle strain is remanded. REASONS FOR REMAND These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In March 2019, the Board remanded the appeal to allow the AOJ to consider in the first instance evidence added to the claims file since the issuance of the statement of the case. In September 2019, the AOJ assigned a 100 percent rating for the left knee disability after total knee replacement surgery effective August 27, 2018 and then a 30 percent rating effective October 1, 2019. The Board has thus recharacterized the issue as listed above. In August 2020, the AOJ assigned a temporary total rating based on convalescence for the right ankle disability effective July 9, 2020 and resumed the 10 percent rating effective November 1, 2020. In June 2020, the AOJ returned the Veteran's appeal to the Board. In a March 2021 letter to the AOJ, the Veteran's attorney representative advised that he no longer represents the Veteran. However, an attorney may not withdraw representation of a veteran after the certification of the appeal to the Board, absent a showing of good cause on motion. 38 C.F.R. § 20.6(a)(2). As the attorney did not file a motion or provide good cause for withdrawal as representative, the Board will continue to recognize him as the Veteran's representative. Lastly, while the Veteran is seeking a total disability rating based on individual unemployability (TDIU) due in part to the disabilities on appeal, he is pursuing that claim under the modernized review system, also known as the Appeals Modernization Act (AMA). Thus, the issue of entitlement to a TDIU is not a part of the current legacy appeal. An initial disability rating greater than 10 percent prior to August 27, 2018 and greater than 30 percent from October 1, 2019 for the service-connected left knee disability Pursuant to the prior remand, the AOJ readjudicated the claim for an initial rating greater than 10 percent for the left knee disability in an April 2020 supplemental statement of the case. However, the AOJ listed the issue as an initial rating in excess of 10 percent for the left knee disability, not considering the recent grant of a 30 percent rating. While the AOJ noted in the Reasons and Bases section that the minimum 30 percent rating following prosthetic replacement of the knee joint had been assigned effective October 1, 2019, the AOJ did not address whether a rating greater than 30 percent was warranted from that time. The AOJ only addressed whether an initial rating greater than 10 percent was warranted prior to August 27, 2018. Thus, to ensure due process, the AOJ must properly consider the staged rating issue prior to the Board's review of the appeal. An initial disability rating greater than 10 percent for the service-connected right ankle disability Pursuant to the prior remand, the AOJ readjudicated the claim for an initial rating greater than 10 percent for a right ankle disability in an April 2020 supplemental statement of the case. In September 2020, while developing other claims not on appeal, the AOJ obtained another examination of the Veteran's right ankle. While the AOJ considered that evidence in an August 2020 rating decision in adjudicating the claims for a temporary total rating based on convalescence and special monthly compensation, the AOJ must properly consider the evidence in a supplemental statement of the case. Accordingly, these matters are REMANDED for the following action: Readjudicate the claims for higher initial ratings for the service-connected left knee and right ankle disabilities, as are listed on the title page of this Remand. This readjudication should include consideration of all the evidence added to the claims file since the April 2020 supplemental statement of the case, to include the September 2020 VA examination report. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.