Citation Nr: 21040129
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 16-14 636
DATE: July 2, 2021

REMANDED

Entitlement to a rating in excess of 20 percent prior to November 10, 2020 and rating in excess of 40 percent beginning November 10, 2020 and thereafter for degenerative joint disease of the lumbosacral spine is remanded.

Entitlement to a rating in excess of 10 percent for left knee instability is remanded.

Entitlement to a rating in excess of 20 percent prior to November 10, 2020 and a rating in excess of 10 percent beginning November 10, 2020 and thereafter for degenerative joint disease of the left knee is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1974 to February 1976. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

These matters were previously remanded in January 2020 and August 2020 for further development.  For the reasons discussed below, remand is again warranted. 

The Board notes that in January 2021 the RO issued a rating decision attempting to decrease the Veteran's rating for his left knee disability.  In response, the Veteran submitted a VA-10182 in March 2021.  The AMA applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019.  See 38 C.F.R. §§ 3.2400, 19.2.  Because the January 2021 rating decision is related to an increased rating appeal pending in the legacy system, the decision is not an initial decision that can be appealed under the AMA.  Further, because the Veteran's left knee claim was pending before the Board, the January 2021 rating decision is improper.  The Veteran's claims remain in the legacy appeal system and the Board has jurisdiction during the entirety of the period. 

1. Entitlement to a rating in excess of 20 percent prior to November 10, 2020 and rating in excess of 40 percent beginning November 10, 2020 and thereafter for degenerative joint disease of the lumbosacral spine.

2. Entitlement to a rating in excess of 10 percent for left knee instability is remanded.

3. Entitlement to a rating in excess of 20 percent prior to November 10, 2020 and a rating in excess of 10 percent beginning November 10, 2020 and thereafter for degenerative joint disease of the left knee.

A remand is necessary due to the receipt of additional evidence which requires the issuance of a Supplemental Statement of the Case (SSOC).  The additional evidence submitted since the last statement of the case contains pertinent findings related to the Veteran's claims. In March 2021 correspondence, the Board afforded the Veteran the opportunity to waive consideration of the additional evidence by the agency of original jurisdiction (AOJ).  The Veteran was advised that he had 45 days to respond to the letter, or the claim would be remanded to the AOJ for review.  The Veteran did not respond.  As such remand for issuance of SSOC is warranted. 

On remand, the agency of original jurisdiction should issue a new SSOC that considers the evidence received since the January 2021 SSOC. 

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records. 

2. After all outstanding treatment records have been obtained, issue a supplemental statement of the case with consideration of all of the evidence of record. 

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Wimbish, 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.