Citation Nr: 21023846
Decision Date: 04/21/21	Archive Date: 04/21/21

DOCKET NO. 13-30 321
DATE: April 21, 2021

REMANDED

Entitlement to a disability rating higher than 10 percent for service-connected right knee tendonitis with meniscal tear and joint osteoarthritis status post meniscectomy (right knee disability) for the period prior to August 1, 2019, higher than 20 percent from that date until October 14, 2020, and higher than 10 percent thereafter is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from February 1977 to February 1980.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans (VA) regional office.  In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  In September 2017 and March 2018, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development and it has since returned for further appellate review.

Evidence received by the AOJ prior to transfer of the records to the Board will be referred to the appropriate rating or authorization activity for issuance of a Supplemental Statement of the Case unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior Supplemental Statement of the Case or the additional evidence is not relevant to the issue on appeal.  38 C.F.R. § 19.37(a); see also 38 C.F.R. § 19.31(b)(1).  In this case, the last Statement of the Case was issued in May 2019.  Since that time, additional evidence relevant to the issue on appeal was added to the file by VA, to include VA treatment records and examination reports.  The appeal must be remanded so that a Supplemental Statement of the Case may be issued that considers all evidence of record.

The Board notes the history is complicated by the fact that multiple claims for a higher rating for this disability have been adjudicated under VA’s modernized review system since the most recent Statement of the Case was issued.  See Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the AMA.  However, the Veteran’s appeal in the older review system, known as the Legacy system, remains as the Veteran has not validly opted-in to the AMA for that appeal.  See 38 C.F.R. §§ 3.2400, 19.2.  

The matter is REMANDED for the following action:

Issue a Supplemental Statement of the Case regarding the appeal as to the ratings assigned for the Veteran’s right knee disability.

 

Nathan Kroes

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Mathew

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.