Citation Nr: 20031546 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 17-46 206 DATE: May 5, 2020 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from January 1955 to November 1957. The Veteran testified at a June 2018 video conference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the claims file. In October 2018, the Board of Veterans’ Appeal (Board) issued a decision that denied service connection for an acquired psychiatric disorder to include PTSD and depression and a heart disorder, dismissed the claim of entitlement to an initial disability rating in excess of 10 percent for tinnitus because it was withdrawn by the appellant, as well as remanded the claims of service connection for a back disability and obstructive sleep apnea as well as for a compensable rating for bilateral hearing loss. As to the claim of service connection for an acquired psychiatric disorder to include PTSD and depression, after the United States Court of Appeals for Veterans Claims (Court) in July 2019 vacated and remanded the October 2018 Board decision to the extent that it denied this claim, the Board in December 2019 remanded it for further development. In this regard, the Board finds that it need not take any further action as to this claim at this time because it is not back from the October 2018 Remand. This delay is needed to ensure that the claimant is afforded full due process in this matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). Entitlement to service connection for a back disability and obstructive sleep apnea as well as for a compensable disability rating for bilateral hearing loss are remanded As to the claims of service connection for a back disability and obstructive sleep apnea as well as for a compensable disability rating for bilateral hearing loss are remanded, in March 2020 the Board wrote the Veteran and his representative and notified them that these issues would be remanded unless it received a waiver of agency of original jurisdiction (AOJ) review, within 45-days of the letter, of the additional pertinent evidence that the AOJ added to the record since it issued the November 2019 supplemental statement of the case (SSOC). To date, no reply to this letter has been received by the Board from the Veteran or his representative. Therefore, the Board must remand the appeal for the AOJ to issue a SSOC. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The appeal is REMANDED for the following action: After undertaking any needed development, to include obtaining and associating with the record any further outstanding VA treatment records and, after obtaining authorizations from the Veteran, obtaining any outstanding private treatment records, issue a SSOC that considers, among other things, the additional pertinent evidence that has been added to the record since the AOJ issued the November 2019 SSOC. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.