Citation Nr: 1821875	
Decision Date: 04/10/18    Archive Date: 04/19/18

DOCKET NO.  13-30 533	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A.J. Turnipseed, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1986 to February 1987, October 1990 to May 1991, October 1991 to February 1992, March 1992 to March 1993, September to October 1996, February to September 2003, April 2005 to July 2006, and October 2007 to July 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above, which granted service connection for posttraumatic stress disorder.  

The Veteran appealed the rating assigned to his service-connected PTSD and, when the appeal was before the Board in March 2016, the Board determined that the issue of entitlement to TDIU had been raised by the record.  The Board remanded the TDIU claim for additional development in March 2016 and October 2017.  All requested development was performed and the appeal has been returned to the Board for further consideration.  

However, for reasons explained below, the appeal is, again, REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required on his part.  


REMAND

The AOJ last issued a supplemental statement of the case (SSOC) in November 2017 that considered the evidence of record at that time, including VA outpatient treatment records dated through November 2017.  However, since the issuance of the November 2017 SSOC, additional, relevant evidence has been added to the record, including a February 2018 VA PTSD examination, VA outpatient treatment records dated from November 2017 to February 2018, and evidence submitted by the Veteran - none of which has been considered by the AOJ.  

While the Veteran's substantive appeal was received after February 2, 2013, the automatic waiver of initial RO consideration does not apply in this case because some of the evidence was obtained by VA, rather than submitted by the Veteran.  See 38 C.F.R. § 20.1304 (c) (2017) (requiring remand for initial AOJ review of pertinent evidence submitted after notification of certification of the appeal to the Board, "unless this procedural right is waived by the appellant or representative").  Thus, a remand is required for the issuance of a SSOC that considers all evidence currently of record.  See 38 C.F.R. §§ 19.31, 19.37.

Accordingly, the case is REMANDED for the following action:

1. Update the claims file with any relevant VA treatment records since February 2018.  

2. After completing the above requested actions and any additional development warranted, readjudicate the TDIU claim on appeal and furnish the Veteran and his representative an SSOC that addresses all of the evidence received into the record since the November 2017 SSOC.  Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
L.M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).