Citation Nr: 21029441
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 19-26 354
DATE: May 13, 2021

REMANDED

Entitlement to an evaluation in excess of 30 percent for right knee degenerative joint disease (DJD) status post arthrotomy and total knee replacement (TKR) is remanded.

Entitlement to an initial evaluation in excess of 30 percent for left knee DJD status post arthrotomy and TKR is remanded.

Entitlement to an initial compensable evaluation for bilateral knee surgical scars is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1966 to May 1971.

This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

In July 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the electronic claims file.

In October 2020, the Board remanded this claim for further development.  Specifically, the Board directed that outstanding treatment records be obtained, and once the records were obtained that the claims on appeal be readjudicated.  On October 21, 2020, the Agency of Original Jurisdiction (AOJ) sent the Veteran a correspondence requesting he submit information regarding outstanding private treatment records within 30 days.  In a Supplemental Statement of the Case (SSOC) dated December 2, 2020, the AOJ denied the claims without considering any newly submitted evidence.  

Shortly after the issuance of the December 2020 SSOC, an authorization to disclose information to VA, dated November 19, 2020 and signed by the Veteran, was received by VA.  Treatment records were then subsequently obtained and associated with the claims folder.  Given that the Veteran acted in good faith and in a timely fashion to authorize VA to obtain these outstanding medical records, the Board concludes that such records should be considered.  In March 2021, the Board sent the Veteran a letter giving the option waive RO review of this newly submitted evidence but did not receive a response within 45 days.  Accordingly, the Veteran's claims should be readjudicated and the newly obtained medical treatment records should be considered by the AOJ. 

The matters are REMANDED for the following action:

After completing any other further development deemed appropriate, the issues on appeal must be readjudicated.  If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Keogh, 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.