Citation Nr: 18154562
Decision Date: 11/30/18	Archive Date: 11/30/18

DOCKET NO. 12-14 111
DATE:	November 30, 2018
REMANDED
The appeal for a total disability rating due to individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran had active service from May 1977 to May 1997.
In a March 2015 decision, the Board noted that the question of entitlement to a TDIU was raised as part and parcel of the Veteran’s appeal for an increased rating for his left knee disability.  The TDIU portion of the appeal was then remanded to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication.
The appeal for a total disability rating due to individual unemployability (TDIU) is remanded.
In September 2018, the agency of original jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC) denying the Veteran’s TDIU claim.  This determination was based largely on the findings of a December 2015 Social and Industrial Survey, as well as the fact that the Veteran had not yet submitted a completed TDIU application (VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability).  The SSOC did not discuss any findings of the March 2017 VA examiners who assessed the Veteran’s service-connected spine, knees, feet and heart, nor did it list these examination reports as evidence reviewed or considered in readjudicating the Veteran’s TDIU claim.  In pertinent part, based on findings from these March 2017 examination reports, the Veteran’s service-connected spine disability rating was increased from 10 to 40 percent, and he was awarded separate ratings for right and left lower extremity radiculopathy, both at 20 percent.
Subsequent to the September 2018 SSOC, but just prior to recertification of the appeal to the Board, the Veteran secured representation for the first time on October 29, 2018.  Prior to this date, the Veteran was unrepresented.  
On November 1, 2018, VA received the Veteran’s completed TDIU application (VA Form 21-8940).  Because the Veteran’s VA Form 9 was filed prior to February 2, 2013, initial AOJ review of this additional relevant evidence is not automatically waived.  
It also appears that the AOJ has since attempted to schedule the Veteran for updated VA examinations of his service-connected disabilities. See a November 7, 2018 Exam Scheduling Request.  
VA treatment reports dated through October 2018 were also added to the record on November 7, 2018.
Given that (1) it does not appear the AOJ considered the results of previously-scheduled VA examinations (which were the bases for increased and separate ratings for some service-connected disabilities) in readjudicating the Veteran’s appeal in its September 2018 SSOC; (2) the Veteran’s newly-appointed representative has not yet been provided an opportunity to submit argument on the Veteran’s behalf; (3) additional relevant evidence pertaining to the Veteran’s TDIU claim has been added to the file since the last SSOC without waiver of consideration of such evidence by the AOJ; and (4) the AOJ has already scheduled the Veteran for updated VA examinations to assess the severity of each service-connected disability, the results of which may impact the outcome of this appeal, the Board believes the Veteran’s TDIU claim must be remanded so that all relevant evidence and argument can be obtained, and so that the Veteran is afforded all consideration due to him under the law.  
The matter is REMANDED for the following action:
1. Afford the Veteran and his representative an opportunity to review the claims file and present a written statement of argument regarding the benefit sought on appeal.
2. Following the completion of all scheduled examinations, readjudicate the Veteran’s TDIU claim with consideration of all evidence of record.
 
V. Chiappetta
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Donna D. Ebaugh, Counsel