Citation Nr: 21002190 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-06 024 DATE: January 13, 2021 REMANDED Entitlement to an initial rating in excess of 60 percent for asbestosis with chronic obstructive pulmonary disease (COPD) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1954 to May 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In August 2019, the Board remanded the issues of entitlement to an initial compensable rating for asbestosis and entitlement to service connection for a respiratory disorder other than asbestosis for additional development. While on remand, a July 2020 rating decision awarded an increased rating of 60 percent for asbestosis as of February 12, 2020. Thereafter, an August 2020 rating decision awarded service connection for COPD, which was combined with the Veteran’s asbestosis, and awarded the 60 percent rating for such disability as of January 22, 2013, the date of service connection. Therefore, as the Veteran’s claim for service connection has been granted in full, it is no longer before the Board. Furthermore, as 60 percent is not the maximum rating available for the Veteran’s asbestosis with COPD, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The case now returns for further appellate review. Entitlement to an initial rating in excess of 60 percent for asbestosis with COPD. The Board finds that the Veteran’s appeal must be remanded for the issuance of a supplemental statement of the case. In this regard, his claim for a higher initial rating for asbestosis with COPD was most recently readjudicated by the Agency of Original Jurisdiction (AOJ) in an August 2020 supplemental statement of the case. Thereafter, additional VA treatment records dated through August 2020 and private treatment records obtained by VA were associated with the record on various dates in September 2020. Thus, in November 2020, the Board solicited a waiver of AOJ consideration of such newly received evidence from the Veteran and his representative. However, in December 2020, the Veteran indicated that he did not wish to waive AOJ consideration and requested that his case be remanded so as to allow the AOJ to review the newly received evidence. Therefore, a remand is necessary in order for the AOJ to consider the newly received evidence in the first instance. The matter is REMANDED for the following action: Readjudicate the Veteran’s claim for an initial rating in excess of 60 percent for asbestosis with COPD based on the entirety of the evidence, to specifically include all evidence associated with the record since the issuance of the August 2020 supplemental statement of the case, which includes VA and private treatment records received on various dates in September 2020. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, Associate 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.