Board reasoning
The Board remanded the claims for additional development and to readjudicate in light of additional evidence added after an SSOC. It noted the lack of a waiver for AOJ consideration of post-SSOC evidence and determined a new SSOC was required if any issue remained not fully granted. The decision emphasizes ensuring due process by returning materials to the AOJ for review before readjudication.
Citation Nr: 26001370
Decision Date: 01/30/26 Archive Date: 01/30/26
DOCKET NO. 16-41 348
DATE: January 30, 2026
REMANDED
Entitlement to a disability rating for right knee osteoarthritis with meniscal tear and chondromalacia, status post partial joint replacement (right knee disability), higher than 0 percent from July 1, 2001 to July 7, 2016, 10 percent from July 7, 2016 to February 2, 2017, and 10 percent from April 1, 2017, is remanded.
Entitlement to a disability rating higher than 0 percent for hearing loss is remanded.
REASONS FOR REMAND
The Veteran served on active duty from May 1971 to June 2001.
In December 2012 the Department of Veterans Affairs (VA) received the Veteran's supplemental claim seeking, in relevant part, disability ratings higher than the existing 0 percent for the right knee disability and 0 percent for hearing loss. In a February 2014 rating decision, the agency of original jurisdiction (AOJ), a VA Regional Office (RO), continued those ratings.
The Veteran appealed those denials to the Board of Veterans' Appeals (Board) in a November 2014 Notice of Disagreement (NOD), VA Form 21-0958. After the RO issued a Statement of the Case (SOC) in June 2016, the Veteran submitted a substantive appeal, VA Form 9, in August 2016.
In January 2020 the Veteran had a Board hearing before a Veterans Law Judge (VLJ). The Veteran's claims file contains a transcript of that hearing.
In March 2020 the Board remanded the right knee and hearing loss rating claims to the RO for additional development.
In an August 2020 rating decision, the RO recharacterized the Veteran's right knee disability as osteoarthritis with meniscal tear and chondromalacia, status post partial joint replacement. The RO increased the rating to 10 percent effective July 7, 2016, assigned a post-surgical convalescence rating of 100 percent from February 2, 2017, and assigned a 10 percent rating from April 1, 2017.
In August 2020 the RO issued a Supplemental Statement of the Case (SSOC) addressing the ratings for right knee disability and hearing loss.
After the August 2020 SSOC, additional VA treatment records were added to the Veteran's claims file. These records contain relevant information with respect to the claims currently on appeal. That evidence was not previously considered by the AOJ.
In an appeal to the Board under the legacy system, when pertinent evidence is added to the record after the issuance of an SSOC, but before the case is certified to the Board and the appellate record is transferred to the Board, the case must be remanded for an SSOC considering that evidence. See 38 C.F.R. §§ 19.31, 19.37.
Here, the Veteran has not waived his right to AOJ review of the added evidence. As such, the Board is remanding the above-listed issues for the AOJ to review the file, including the medical evidence added since the August 2020 SSOC, and issue a new SSOC addressing each of those issues that is not fully granted on review.
In a December 2025 letter the Board informed the Veteran that the VLJ who conducted the January 2020 hearing is no longer available to participate in the appeal. The Board informed the Veteran that the complete hearing transcript was in the file and informed him that he had 30 days to request a new hearing if desired. No response was received.
The matters are REMANDED for the following action:
1. Review the claims file, to include evidence added after the August 2020 Supplemental Statement of the Case was issued, undertake any additional development deemed necessary, and readjudicate the claims. Then, if any of the issues on appeal is not fully granted, issue a new Supplemental Statement of the Case addressing such issues. Afford the Veteran and his representative an opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order.
Rebecca N. Poulson
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board K. J. Kunz, 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.