Citation Nr: 18142665
Decision Date: 10/16/18	Archive Date: 10/16/18

DOCKET NO. 14-30 434
DATE:	October 16, 2018
REMANDED
Entitlement to an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD) for the period from May 14, 2010, to July 15, 2012, and for the period from September 1, 2012, to September 15, 2013, to an evaluation in excess of 50 percent for PTSD for the period from September 16, 2013, to July 1, 2016, and to an evaluation in excess of 70 percent for the period beginning July 2, 2016, is remanded.
REASONS FOR REMAND
The Veteran served honorably on active duty in the United States Army from August 1976 to February 1977.  This matter comes before the Board of Veterans’ Appeals (Board) from a June 2011 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA).
Entitlement to an evaluation in excess of 10 percent for posttraumatic stress disorder for the period from May 14, 2010, to July 15, 2012, and for the period from September 1, 2012, to September 15, 2013, to an evaluation in excess of 50 percent for PTSD for the period from September 16, 2013, to July 1, 2016, and to an evaluation in excess of 70 percent for the period beginning July 2, 2016, is remanded.
Since the Veteran was issued a Supplemental Statements of the Case (SSOC) in August 2016, VA secured and associated with the claims file numerous VA treatment records  that had not been considered in the August 2016 SSOC.
Generally, the Board may not consider additional evidence submitted by a claimant that has not previously been reviewed by the Agency of Original Jurisdiction (AOJ), unless a waiver of initial AOJ review is obtained from the veteran.  Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c).  However, in cases where, as here, the Substantive Appeal was filed on or after February 2, 2013, 38 U.S.C. § 7105(e) provides for an automatic waiver of initial AOJ review of evidence submitted by the claimant or the claimant’s representative, unless there is a specific request that the AOJ initially review the submitted evidence.
As the additional VA treatment records were not submitted by the Veteran or her representative, VA sent the Veteran and her representative correspondence in April and July of 2018 informing them of this additional evidence and asking whether they would wish to waive AOJ review of these treatment notes.  That correspondence clarified that if VA did not receive a response within 45 days of the letter, VA would assume that the Veteran did not wish to have the Board decide the appeal at this time and would remand the appeal to the AOJ for review.  As no waiver of these additional substantive records has been received and more than 45 days have elapsed since the Veteran and her representative were asked if they would like to waive AOJ review, the Board must remand this matter for initial AOJ consideration.
The matter is REMANDED for the following action:
1. Consider the additional evidence received by VA since the most recent SSOC and readjudicate the claim for an increased evaluation for PTSD.
 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Whitelaw, Associate Counsel