Citation Nr: 21042016
Decision Date: 07/11/21	Archive Date: 07/11/21

DOCKET NO. 16-13 568
DATE: July 11, 2021

REMANDED

Entitlement to a rating in excess of 30 percent for the service-connected left knee total arthroplasty with history of degenerative joint disease is remanded.

REASONS FOR REMAND

The Veteran had active service from September 1973 to May 1980. In July 2019, a hearing was held before a Veterans Law Judge who is no longer employed at the Board of Veterans' Appeals (Board).  See May 2021 notice letter to the Veteran.  In a June 2021 written response, the Veteran indicated that he did not wish to appear at another Board hearing and asked that the Board consider his case based on the evidence of record. 

Previously, in November 2020, the Board remanded the Veteran's claim for further development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain private treatment records and schedule the Veteran for a VA examination to determine the current severity of his left knee disability. The requested development was completed, and the claim for an increased rating was readjudicated in a March 2021 supplemental statement of the case (SSOC). 

Subsequently, in April 2021, the Veteran submitted additional, new, and pertinent private treatment records, prior to the appellate record being returned to the Board. VA regulations require the issuance of an SSOC when the AOJ receives additional pertinent evidence after the most recent SSOC has been issued and before the appellate record is transferred to the Board. 38 C.F.R. § 19.31(c). The Veteran did not waive initial AOJ adjudication of the records submitted in April 2021. Thus, a remand is required for the AOJ to review this evidence in the first instance and to issue an SSOC if the claim is not granted in full. Accordingly, this matter is REMANDED for the following action:

Readjudicate the Veteran's appeal for entitlement to a rating in excess of 30 percent for the service-connected left knee total arthroplasty with history of degenerative joint disease based on the entirety of the evidence. If this claim remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review.

No action is required of the Veteran until he is notified by VA.  However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005).  The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This appeal must be afforded prompt treatment.

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Davidoski, 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.