Citation Nr: 18146051
Decision Date: 10/30/18	Archive Date: 10/30/18

DOCKET NO. 17-17 982
DATE:	October 30, 2018
REMANDED
The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from October 1978 to April 1984 and from July 6, 1992 to July 19, 1992.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.
In addition to the matter noted above, the Veteran has appealed his claims for entitlement to an increased rating for lumbosacral strain, entitlement to service connection for left knee pain, entitlement to service connection for right knee pain, and entitlement to service connection for degenerative arthritis of the spine.  See Notice of Disagreement, received April 2018.  The electronic record indicates that the AOJ is taking action on these issues.  The matters have not been certified for appellate review and the Board will not undertake review of the matters at this time.  If the matters are not resolved in the Veteran’s favor, the RO will certify the matters to the Board, which will undertake appellate review of the RO’s action.  Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board’s jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (2016) (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue).
1. Entitlement to a TDIU
The Veteran seeks entitlement to a TDIU.  The Veteran was provided VA examinations related to his service-connected low back disability in December 2017 and March 2018.  The December 2017 and March 2018 VA examiners addressed the impact the Veteran’s service-connected low back disability has on his employability.    
The RO, however, has not readjudicated the Veteran’s claim since the December 2017 and March 2018 VA examinations.  As pertinent evidence has been received since the January 2017 statement of the case, the AOJ must readjudicate the Veteran’s claim for entitlement to a TDIU giving consideration to all evidence currently of record.  38 C.F.R. § 19.31 (2018).
The Board recognizes that, although the Veteran’s substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because this additional evidence was obtained by VA and was not submitted by the Veteran.  See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration).  This provision only applies to evidence submitted by the Veteran.  Therefore, the issue must be remanded to allow for AOJ consideration of the VA examinations.  
The matter is REMANDED for the following action:
Review the claims file and after conducting any additional indicated development, readjudicate the Veteran’s claim for entitlement to a TDIU.  If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case.  The appropriate period should be allowed for response before the appeal is returned to the Board.


 
L. Chu
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. G. LeMoine, Associate Counsel