Citation Nr: 21000335
Decision Date: 01/05/21	Archive Date: 01/05/21

DOCKET NO. 16-38 554
DATE: January 5, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served in the United States Army from July 1968 to February 1971.

In a June 2019 Board Decision, the Board denied entitlement to a TDIU.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which granted the parties' August 2020 Joint Motion for Remand (JMR), vacated the June 2019 Board Decision which denied TDIU, and remanded the matter to the Board for action consistent with the JMR. The TDIU claim is back before the Board pursuant to that remand from the Court.  

Subsequent to the June 2019 Board Decision, the RO granted service connection for bilateral hearing loss, tinnitus, and ischemic heart disease.  See September 2019 Rating Decision; September 2020 Rating Decision.  In addition, VA treatment records through July 2020 and a pertinent VA examination have been added to the claims file.  See, e.g., August 2020 VA Examination.  The RO has not yet considered this evidence in light of the TDIU claim.  Because of the procedural developments, the absence of a waiver, and the fact newly added evidence is pertinent to the TDIU claim, the matter ordinarily must be remanded.  See 38 C.F.R. § 20.1305(c).

The Veteran’s representative submitted a December 2020 Informal Hearing Presentation in which the representative specifically requested that, before relying on any additional evidence developed, the Board give the Veteran notice of the additional evidence and an opportunity to respond to the evidence.  This remand and the supplemental statement of the case that will be issued in compliance with the remand instructions will serve as the requested notice.  See also 38 C.F.R. § 20.1305(c).

The matters are REMANDED for the following action:

1. Obtain the Veteran’s VA treatment records for the period from July 2020 to the Present.

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Kerry Hubers

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.