Citation Nr: 21077555
Decision Date: 12/30/21	Archive Date: 12/30/21

DOCKET NO. 15-41 330
DATE: December 30, 2021

REMANDED

Entitlement to a higher initial rating for a service-connected left knee disability, rated as 10 percent disabling for limitation of flexion from November 29, 2009 to June 2, 2015; 10 percent disabling for instability from March 6, 2012 to June 2, 2015; 100 percent disabling from June 3, 2015 to September 30, 2016 for convalescence following left knee arthroplasty; and 30 percent disabling thereafter for the residuals of left knee arthroplasty, is remanded.

Entitlement to an initial rating in excess of 20 percent for a right ankle disability is remanded.

Entitlement to an initial compensable rating for a right ankle surgical scar is remanded.

REASONS FOR REMAND

These matters were previously before the Board of Veterans' Appeals (Board) in November 2020, when they were remanded for further development.  After the issuance of a February 2021, post-remand supplemental statement of the case, the Agency of Original Jurisdiction developed additional new evidence pertinent to the Veteran's appeals.  The Board attempted to solicit a waiver of initial AOJ review from the Veteran, but he has not provided the necessary waiver for the Board to proceed on the merits of his appeals at this time.  As a result, the Veteran's appeals must be remanded so the AOJ can consider the newly developed evidence in the first instance to ensure the Veteran is afforded due process under VA regulation.  See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003); 38 C.F.R. § 19.37(b).

The matters are REMANDED for the following action:

Readjudicate the issues on appeal based on all the evidence of record, to include that associated with the claims file after the February 2021 supplemental statement of the case, taking any additional development action deemed necessary after review of such evidence.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.