Citation Nr: 21021262 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 19-12 474 DATE: April 12, 2021 REMANDED Entitlement to service connection for a left hip trochanteric pain syndrome is remanded. Entitlement to a compensable rating for allergic rhinitis is remanded. Entitlement to service connection for sleep apnea (SA) is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1990 to March 1994. These matters come before the Board of Veterans Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia. These issues ot entitlement to service connection for a left hip and right knee, as well as entitlement to a compensable rating for rhinitis were before the Board and denied in September 2019; entitlement to service connection for sleep apnea was remanded for further development. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (the Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JPMR) and returned the issues of entitlement to service connection for SA, left hip and right knee disabilities, as well as entitlement to an increased rating for allergic rhinitis to the Board for action consistent with JPMR. The September 2019 Board decision was partially vacated, and the claim remanded. In December 2020, the Board remanded these matters for the following: (1) a new VA examination regarding his right knee disability that considers a March 2016 statement by his treating physician; (2) an initial VA examination regarding his left hip disability; (3) an initial VA examination regarding SA; and (4) an addendum VA examination regarding the severity of his rhinitis that does not consider ameliorative effects of medications. See December 2020 Board remand. REASONS FOR REMAND 1. Entitlement to service connection for left hip trochanteric pain syndrome 2. Entitlement to a compensable rating for rhinitis 3. Entitlement to service connection for SA 4. Entitlement to service connection for a right knee disability In December 2020, the Veteran underwent an initial VA examination for SA, and an addendum examination for rhinitis. In February 2021, the Veteran underwent an initial VA examination for a left hip, and a new VA examination for a right knee. Under 38 C.F.R. § 19.37(a), evidence received by the Agency of Original Jurisdiction (AOJ) prior to the transfer of records to the Board after an appeal has been initiated will be referred to the appropriate rating or authorization activity for review and disposition. In such circumstances, a Supplemental Statement of the Case (SSOC) must be furnished to the veteran and any representative, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). In this case, the Statement of the Case (SOC) for SA was issued in September 2020, prior to the receipt of the December 2020 VA examination report. The SOC for rhinitis was issued in January 2019, prior to a December 2020 VA addendum examination report. The SOCs for a right knee and left hip conditions were issued in June 2019, prior to the receipt of the February 2021 VA examination reports. The date of transfer of records to the Board was December 2020, when the AOJ sent a notice letter informing the Veteran that it had certified the appeal to the Board. The December 2020 VA examination report for SA is an initial examination and is therefore not duplicative evidence (not additional copies of records already collected) and is relevant to the issue on appeal. The December 2020 addendum examination for rhinitis is not duplicative evidence as it considers the severity of the disability without the ameliorative effect of medications. The February 2021 VA examination report for the left hip is new as it is an initial examination; the February 2021 right knee exam is not duplicative evidence (not additional copies of records already collected) and is relevant to the issue on appeal. The Veteran has not filed a waiver of AOJ review. Therefore, the evidence received by the AOJ prior to the transfer of records to the Board must be referred to the AOJ for initial review and disposition. 38 C.F.R. §§ 19.31. On remand, the AOJ must issue SSOCs that consider additional evidence of record received since the SOCs of September 2020, January 2019, and June 2019. The matters are REMANDED for the following action: 1. Readjudicate the four issues on appeal. If the benefit sought it not granted to the Veteran’s satisfaction, send the Veteran and his representative an SSOC for each issue and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.