Citation Nr: 21030004 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-22 218 DATE: May 17, 2021 REMANDED Entitlement to a disability rating greater than 10 percent for left knee degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1987 to April 1990. A Board videoconference hearing held before the undersigned Judge in December 2019. The hearing transcripts have been associated with the Veteran's file. The matter was previously remanded by the Board in January 2020 for further development. As part of the Board's remand directives, the Agency of Original Jurisdiction (AOJ) was instructed to obtain an examination assessing the level of severity of the Veteran's left knee disability. The matter has returned to the Board for an appellate review. Entitlement to a disability rating greater than 10 percent for left knee degenerative joint disease is remanded. The most recent Supplemental Statement of the Case (SSOC) addressing the issues on appeal was issued in January 2021. After the SSOC was issued, additional evidence related to the Veteran's increased rating claim for his left knee degenerative joint disease were associated with the record. The records include treatment reports requested by the VA from Utica Park Clinic and received on March 21, 2021; and medical reports requested by the VA from Uber Group Healthcare and received on May 3, 2021. These records show pertinent medical evidence that were not considered by the AOJ. Where evidence is obtained by the VA, the automatic waiver provision does not apply. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154 , 126 Stat. 1165 (amending 38 U.S.C. § 7105 and providing that, in cases where a substantive appeal was received on or after February 2, 2013, there is an automatic waiver of initial RO review if the veteran or his/her representative submits evidence to the RO or the Board; however, the automatic waiver does not apply to VA-generated evidence). Thus, as these records do not appear to have been submitted by either the Veteran or his representative, and a waiver of initial AOJ consideration is not of record, the automatic waiver provisions do not apply. Accordingly, a remand is required for the AOJ to review the new evidence in the first instance and issue another SSOC if the claim is not granted in full. See 38 C.F.R. § §§ 19.31, 19.37(a). In addition, in an April 2021 Notification Letter, the AOJ informed the Veteran they are waiting for responses to records requests. The Veteran was given 30 days to submit the evidence. The Board advises the AOJ to withhold readjudication of the appeal until the 30 day period had ended. Furthermore, the regulations pertaining to musculoskeletal disabilities were amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Secretary of VA has determined that "claims pending prior to [February 7, 2021] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." As the Veteran's claim was pending prior to February 7, 2021, a remand is necessary for an examination of his left knee degenerative joint disease using the rating criteria from the amendments. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected left knee degenerative joint disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the new rating criteria. Specifically, the examiner must test the Veteran's active motion, passive motion, ranges of motion of the opposing joint, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. A complete rationale should be provided by the examiner for any expressed opinion. 2. The AOJ must review all relevant evidence that has been associated with the Veteran's claims file since the issuance of the January 2021 SSOC, including the medical reports from Utica Park Clinic, Uber Group Healthcare, and the requested VA Knee Conditions examination. Thereafter, readjudicate the Veteran's claim for an increased rating greater than 10 percent disabling for left knee degenerative joint disease and if the claim is not granted in full, furnish the Veteran an SSOC and an appropriate time to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.