Citation Nr: 21012274 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-43 239 DATE: March 4, 2021 REMANDED Entitlement to an effective date prior to July 24, 2007 for the award of a 20 percent rating for residuals of right knee meniscus tear, status post surgery (right knee meniscal disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1980 to July 1983. He also had service in the Army National Guard. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Guaynabo, Puerto Rico. In a May 2016 decision, the Board, in pertinent part, denied the Veteran’s claim for an effective date prior to July 24, 2007 for the award of a 20 percent rating for a right knee meniscal disability. He appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 memorandum decision, the Court, in pertinent part, vacated the Board’s May 2016 decision as to the aforementioned effective date issue and remanded the matter for readjudication. Specifically, the Secretary conceded the inadequacy of the Board’s statement of reasons or bases because the Board failed to consider two pieces of medical evidence (May 2007 and June 2007 VA treatment notes) that might establish an effective date for the right knee disability in the year preceding a July 2007 increased rating claim. In November 2018, the Board again denied the Veteran’s claim for an earlier effective date, which the Veteran appealed to the Court. In an April 2020 memorandum decision, the Court vacated the Board’s decision on the basis that the Board applied the wrong regulation to the Veteran’s claim. Specifically, the Court held that 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015), which applies to new claims, did not apply to the present appeal. Instead, as this appeal involves a claim for an earlier effective date for the award of an increased rating, the Court held that the applicable regulation was 38 C.F.R. § 3.157 (as in effect prior to March 24, 2015). Entitlement to an effective date prior to July 24, 2007 for the award of a 20 percent rating for a right knee meniscal disability is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure the Veteran due process. The record reflects that pertinent VA-generated evidence was added to the claims file after the agency of original jurisdiction (AOJ) last adjudicated the Veteran’s claim in a November 2014 statement of the case (SOC). In this regard, numerous additional, non-duplicative VA outpatient treatment records (to include records that pre-date the July 2007 increased rating claim and reference right knee symptoms and treatment), were added to the claims file and have not been considered by the AOJ. While 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review of any new evidence a veteran submits with or after submission of a substantive appeal, that provision does not apply to VA-generated evidence added to the file by VA. 38 U.S.C. § 7105(e). In January 2021, the Board sent a letter to the Veteran and his representative informing them that evidence had been added to the record which had not been previously considered by the AOJ. The Veteran was notified of his right to have the AOJ review the evidence and of the fact that he could waive that right by submitting a waiver in writing. He was informed that if he did not respond with 45 days of the date of the Board’s letter, the Board would assume that he did not wish to have the Board decide his appeal and would remand the appeal to the AOJ for review. As the 45-day period has passed and no response has been received, remand is required. This matter is REMANDED for the following action: After accomplishing any additional development deemed necessary, readjudicate the issue on appeal based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate 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.