Citation Nr: 22017003
Decision Date: 03/23/22	Archive Date: 03/23/22

DOCKET NO. 06-16 628
DATE: March 23, 2022

REMANDED

Entitlement to a rating in excess of 10 percent for service-connected right knee disability, to include retropatellar pain syndrome, tendinopathy, and chondromalacia, prior to October 15, 2021, and in excess of 20 percent thereafter is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from June 1992 to August 1992 and from September 1993 until his honorable discharge in August 2004.

This case comes before the Board on appeal from an August 2004, decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for a right knee disability and awarded an initial noncompensable disability rating. The Veteran subsequently filed a timely notice of disagreement and appeal to the Board. 

There is a substantial procedural history in this case. At this point, it suffices to say that the Board most recently remanded the appeal to the Agency of Original Jurisdiction (AOJ) on May 19, 2021. The Board directed the AOJ to obtain a new VA examination and medical opinion assessing the Veteran's right knee disability. The AOJ accomplished the directives, obtaining the examination and opinion in October 2021. The AOJ then issued a Supplemental Statement of the Case (SSOC) on December 29, 2021. Following issuance of that SSOC, the VA Regional Office associated with the Veteran's claims file a March 26, 2021, VA-contracted examination (received January 5, 2022) assessing the Veteran's right knee disability. The AOJ did not previously consider that evidence in any prior (supplemental) statement of the case. Rather, the AOJ issued a rating decision on January 13, 2022, continuing the currently assigned ratings.

Pursuant to 38 C.F.R. § 19.31(c)(1), "Pursuant to remand from the Board. The agency of original jurisdiction will issue a Supplemental Statement of the Case if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect[.]" (Emphasis added.) Here, following remand from the Board and prior to returning the appeal to the Board, the AOJ associated a March 26, 2021, VA-contracted examination with the Veteran's claims file. That evidence has not been considered and included within a SSOC as is procedurally mandated by VA regulations. The Veteran has not waived the Regional Office's consideration of this evidence. Therefore, remand is required for issuance of a SSOC taking into consideration the evidence. 

The Board recognizes this will delay adjudication of the Veteran's appeal, but he is guaranteed procedural due process. 

Accordingly, the matter is REMANDED for the following action:

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1. Readjudicate the Veteran's claim on appeal and issue a corresponding Supplemental Statement of the Case, which must take into consideration the March 26, 2021, VA-contracted examination (received by VA January 5, 2022) and all other relevant evidence.

 

Mariah N. Sim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. F. Sawka, 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.