Citation Nr: 18114167
Decision Date: 06/26/18	Archive Date: 06/26/18

DOCKET NO. 14-14 298
DATE:	June 26, 2018
REMANDED
Entitlement to an initial compensable disability rating for bilateral cataracts is remanded.
Entitlement to higher initial disability ratings for posttraumatic stress disorder (PTSD), currently rated as 30 percent since October 29, 2010, and 70 percent since May 10, 2016, is remanded.
REASONS FOR REMAND
The Veteran had active military service from January 1968 to October 1970.  These issues are on appeal from August 2011, January 2014, and May 2016 rating decisions.
1. Entitlement to an initial compensable disability rating for bilateral cataracts is remanded.
2. Entitlement to higher initial disability ratings for PTSD, currently rated as 30 percent since October 29, 2010, and 70 percent since May 10, 2016, is remanded.
Following the most recent readjudication of the claims in the September 2015 Statement of the Case (SOC) and the May 2016 Supplemental SOC (SSOC), additional pertinent VA treatment records and a VA examination were added by the Agency of Original Jurisdiction (AOJ) to the Veteran’s paperless claims file.  To date, this pertinent evidence has not been reviewed by the AOJ, and no waiver from the Veteran or his representative is of record.  The Board notes that under section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, if new evidence is submitted by the veteran or his or her representative with or after a Substantive Appeal received on or after February 2, 2013 ( as is the case here), then it is subject to initial review by the Board unless the veteran explicitly requests AOJ consideration.  38 U.S.C. § 7105(e).  However, the new regulations do not apply to the current appeal as the new evidence was submitted by the AOJ and not by the Veteran or his representative.  
The Board sent the Veteran and his representative a letter in May 2018 asking whether the Veteran waived his right to have the AOJ consider this additional evidence in the first instance.  The letter informed the Veteran that if he did not respond within 45 days, then the Board would assume that the Veteran did not wish for the Board to decide the claims at this time, and the Board would accordingly remand the claims back to the AOJ for review.  The Veteran and his representative did not respond to this letter.  Thus, the Board will presume that the Veteran wants the claims remanded back to the AOJ for a review of the newly received evidence.  See 38 C.F.R. §§ 20.800, 20.1304(c); Disabled American Veterans v. Sec’y of Veteran’s Affairs, 327 F.3d 1339, 1346 (Fed. Cir. 2003).





(CONTINUED ON NEXT PAGE)
The matters are REMANDED for the following action:
Review the new evidence submitted since the September 2015 SOC and the May 2016 SSOC, and readjudicate the Veteran’s claims.  If the claims remain denied, issue to the Veteran and his representative a SSOC.  Afford them the appropriate period of time within which to respond thereto.
 
V. Chiappetta
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shauna M. Watkins, Counsel