Citation Nr: 21013927 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 05-12 730 DATE: March 10, 2021 REMANDED 1. Entitlement to service connection for a bilateral hip disorder is remanded. 2. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee prior to January 20, 2020, and in excess of 50 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran had active duty from November 1963 to November 1966. The Board previously denied the claims on appeal in April 2018. The Veteran appealed the Board’s April 2018 decision to the United States Court of Appeals for Veterans Claims (Court), and in February 2019, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the Board’s April 2018 decision that denied service connection for a bilateral hip disorder and a rating in excess of 10 percent for DJD of the left knee. The Board remanded the matters in July 2019 for actions consistent with the directives of the February 2019 JMPR. While the record shows that the Agency of Original Jurisdiction (AOJ) performed the requested actions, unfortunately, the Board must again remand the matters on appeal for additional procedural development. The Board must remand the case because new and pertinent evidence was associated with the claims file since the issuance of the last supplemental statement of the case (SSOC) in July 2020. Generally, the Board may not consider additional evidence not previously reviewed by the AOJ unless a waiver of initial AOJ review is obtained from a claimant. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c). Although 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a claimant submits evidence to the AOJ or the Board with, or after submission of a Substantive Appeal to the Board (VA Form 9), this provision is only applicable to cases where the VA Form 9 was filed on or after February 2, 2013. 38 U.S.C. § 7105(e). While the Veteran filed his VA Form 9 for the service connection claim after this date, 38 U.S.C. § 7105(e) does not apply to VA-generated evidence, such as VA examination reports and VA treatment records. The record shows that following the issuance of the July 2020 SSOC, many new CAPRI documents, to include from the East Orange and Lyons VA Medical Centers (VAMCs) and the Piscataway VA Clinic, as well as other VA-general medical evidence, has been associated with the claims file but has not been reviewed by the AOJ. Most recently, the Veteran underwent a VA examination for the left knee symptoms in January 2021, which is very relevant to the current appeal. The record shows that the AOJ has not had an opportunity to review this VA examination report in the first instance. On December 7, 2020, the Board sent a letter to the Veteran informing him of the evidence that had been added to the file and giving him the option to waive initial review by the AOJ of the newly-associated evidence since the July 2020 SSOC. The letter also informed him that he had 45 days from the date of the letter to respond. The letter noted that if the Board did not hear from him by the end of the 45-day period, the Board would assume that he did not wish to have the Board decide his appeal, and it would remand his appeal to the AOJ for review. The record shows that this letter was not returned to VA as undeliverable. Moreover, the Veteran has contacted VA on several occasions since the issuance of the December 2020 letter regarding other matters, but has not provided a waiver of this newly-associated, VA-generated evidence. Thus, as there is no indication that the Veteran has waived initial AOJ adjudication, a remand is required in the case for the AOJ to consider the new evidence relevant to the claims of entitlement to service connection for a bilateral hip disorder and an increased rating for the left knee DJD. The matters are REMANDED for the following action: Readjudicate the claims of entitlement to service connection for a bilateral hip disorder and entitlement to a disability rating in excess of 10 percent for DJD of the left knee prior to January 20, 2020, and in excess of 50 percent thereafter, in light of the new evidence associated with the claims file since the issuance of the July 2020 SSOC, to include VA treatment records and the January 2021 VA examination report for the left knee. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.