Citation Nr: 21011868 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-26 298 DATE: March 2, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for Osgood-Schlatter's disease with left knee pain and tendonitis (left knee disability) is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Navy from January 1983 to October 1988. Upon review of the record, the Board concludes that further procedural development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate procedure prior to final adjudication Entitlement to a disability rating in excess of 10 percent for Osgood-Schlatter's disease with left knee pain and tendonitis (left knee disability) is remanded. In December 2017 and May 2020, the Board addressed the Veteran’s claim for an increased rating for the service-connected left knee disability. The Board remanded the claim to the agency of original jurisdiction (AOJ) for additional evidence development. In December 2020, the AOJ issued a supplemental statement of the case (SSOC). At that time, the AOJ continued to deny a rating in excess of 10 percent for the service-connected left knee disability. The AOJ noted that the available treatment records were reviewed. The Board notes that the available records from the Rutherfordton Community Based Outpatient Clinic (CBOC) and Ashville VAMC ended on September 22, 2020. In January 2021, the Veteran’s treatment records from the Rutherfordton CBOC and Ashville VAMC were associated with the claims file for the period after September 22, 2020. Importantly, in November 2020, an Orthopedic Surgery Note contains pertinent evidence for the Veteran’s increased rating claim for the service-connected left knee disability. The Board observes that additional medical records have been associated with the Veteran’s electronic claims folder since the AOJ issued the SSOC on December 23, 2020. The Board notes that treatment records from the Asheville VAMC and Rutherford CBOC were associated with the claims file prior to the latest certification of this appeal to the Board. These records were added to the Veteran’s claims file after issuance of the SSOC, and it is clear that the AOJ did not review these records; therefore, another SSOC must be furnished to the Veteran and his representative. See 38 C.F.R. § 19.31. If the Board were to consider this evidence in the first instance, this potentially could be prejudicial because the Veteran, in effect, would “lose one bite of the apple,” meaning the benefit of one level of judicial review. Cf., Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the Board concludes that the AOJ should have the opportunity to review the additional medical records and issue a SSOC. See 38 C.F.R. § 19.37 (b). The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38C.F.R. §20.1304 (c). The Veteran has not submitted a waiver of AOJ consideration of the new evidence received since issuance of the December 2020 SSOC, and the AOJ has not issued an SSOC with consideration of the newly received evidence. On remand, the agency of original jurisdiction should issue a SSOC that considers all the evidence received since the December 2020 SSOC. Consequently, the matter is REMANDED to the AOJ for the following action: 1. Readjudicate the claim for a rating in excess of 10 percent for the service-connected left knee disability in light of all the additional evidence added to the record since the December 2020 SSOC. If the benefit sought on appeal is denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.