Citation Nr: 21042460
Decision Date: 07/13/21	Archive Date: 07/13/21

DOCKET NO. 09-23 446
DATE: July 13, 2021

REMANDED

Entitlement to a rating in excess of 10 percent prior to October 22, 2018, and in excess of 20 percent thereafter, for status post anterior cruciate ligament (ACL) repair, left knee (hereinafter "left knee disorder"), is remanded.

Entitlement to a rating in excess of 30 percent for left knee limitation of extension is remanded.

Entitlement to a rating in excess of 10 percent prior to October 22, 2018, and in excess of 20 percent thereafter, for status post anterior cruciate ligament (ACL) repair, right knee (hereinafter "right knee disorder"), is remanded.

Entitlement to a rating in excess of 10 percent for right knee limitation of extension is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1988 to August 1991.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in January 2008, January 2010 and November 2019 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The Veteran testified before the undersigned Veterans Law Judge in a January 2015 video conference hearing, and again at a January 2021 virtual hearing.  Transcripts of both hearings have been associated with the claims file.  

The Board remanded these matters in March 2015, October 2016, and October 2017 for additional development. While the Board sincerely regrets the additional delay in this longstanding appeal, an additional remand is unavoidable in order to afford the Veteran due process.  

Following issuance of the November 2019 supplemental statement of the case (SSOC), the RO has added VA treatment records and a March 2021 VA examination report to the Veteran's claims file without readjudicating the claims.  In April 2021, the Board sent the Veteran and his representative a letter and offered them an opportunity to waive initial Regional Office consideration of this new evidence.  The letter notified the Veteran and his representative that if no response was received within 45 days of the date of the letter, then the Board will assume that the Veteran does not wish for the Board to decide the claims at this time and will remand for Regional Office consideration.  

Neither the Veteran, nor his representative responded within 45 days.  Thus, the Veteran has effectively not waived initial RO consideration of the evidence added to the claims file since the November 2019 SSOC.  The Board, therefore, must remand the issues on appeal for the RO to readjudicate the claim following review of the evidence added to the claims file since November 2019.  See 38 C.F.R. § 20.1304(c) (2017); also see VBA Fast Letter 14-02.

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The matters are REMANDED for the following action:

The Veteran's claims should be readjudicated based on the entirety of the evidence, to include consideration of all evidence added to the claims file since the November 2019 SSOC.  An appropriate period of time should be allowed for response.

 

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Adamson, 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.