Citation Nr: 21030868 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 13-03 487A DATE: May 19, 2021 REMANDED 1. Entitlement to a rating greater than 10 percent for residuals of right knee arthroplasty and chondroplasty prior to January 30, 2019, and greater than 20 percent, thereafter, is remanded. 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 4. Entitlement to basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C.A. Chapter 35 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1999 to September 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of the hearing is of record. Thereafter, in September 2017, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. There has been substantial compliance with the Board's September 2017 remand directives. See Stegall v. West, 11 Vet. App. 168 (1998). In this regard, the Board directed in September 2017, among other directives, that the Veteran be scheduled for a new Board hearing since the prior hearing in December 2016 did not include testimony on the issue of entitlement to DEA benefits. However, in May 2019, the Veteran's representative submitted additional argument and a new substantive appeal (VA Form 9) on the issues, including the issue of entitlement to DEA benefits, and he indicated that the Veteran did not wish to have a Board hearing. See May 2019 VA Form 9. The Board thus finds that this evidence is sufficient to show that the Veteran does not desire to have a new hearing on the issue of entitlement to DEA benefits and that there has been substantial compliance with the Board's September 2017 remand directives. Id. The Board must remand this case in view of new and pertinent evidence has been associated with the claims file since the issuance of the last supplemental statement of the case (SSOC) in April 2019. In this regard, 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. § 20.1305(c). With that said, the provisions under 38 U.S.C. § 7113(c) provide for initial Board review of evidence that is submitted by the appellant and his representative with the notice of disagreement or within 90 days following receipt of the Notice of Disagreement. This exception is not applicable here. Rather, the additional evidence on file is VA-generated evidence consisting of VA treatment records received in February 2021, and a VA contract examination (LHI) report dated in May 2021 that pertains to the Veteran's right knee disability. Thus, as the AOJ has not had the opportunity to review this pertinent evidence as it relates to the present appeal in the first instance, a remand is required for such review and for the issuance of a SSOC. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.31, 20.1305(c). In addition, the Veteran's representative requested in May 2019 that VA provide him with a copy of the January 2019 VA examination reports. Accordingly, on remand, the AOJ should provide the Veteran's representative with copies of the January 2019 examination reports as well as the May 2021 LHI examination report. While the Board regrets the additional delay, another remand is necessary to make a fully informed decision in this matter and to ensure fulfillment of the Veteran's due process rights. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with copies of the January 2019 and May 2021 examination reports. 2. Thereafter, readjudicate the claims on appeal with consideration of the new evidence associated with the claims file since the issuance of the April 2019 SSOC, to include VA treatment records received in February 2021 and the May 2021 VA examination report for the right knee. K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.