Citation Nr: 21061596
Decision Date: 10/04/21	Archive Date: 10/04/21

DOCKET NO. 07-35 024
DATE: October 4, 2021

REMANDED

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance prior to March 20, 2017 is remanded.

Entitlement to specially adapted housing is remanded.

REASONS FOR REMAND

After the issuance of the March 2020 Supplemental Statement of the Case (SSOC), the most recently issued SSOC on file, the Veteran was afforded a VA examination for his erectile dysfunction and VA treatment records dated April 2020 were added to the claims file.  VA informed the Veteran by way of a letter dated July 2021 that VA treatment/exam records were not considered by the Agency of Original Jurisdiction (AOJ) and that if no response was received within 45 days, VA would assume that the Veteran did not want to waive his right to AOJ review, and the Board would remand the matter.  

As the Veteran has not responded within the prescribed time there is no basis for a waiver of RO consideration of the additional evidence under 38 C.F.R. § 20.134.  Additionally, the new evidence was not submitted by the Veteran.

VA regulation, 38 C.F.R. § 19.37, requires the issuance of an SSOC unless the evidence is either: (1) duplicative; (2) discussed in an earlier SSOC or SOC; or (3) irrelevant to the issues on appeal. 

The aforementioned evidence is new and not duplicative of previously received evidence.  It has not been considered in an earlier SOC and a new SSOC has not been issued.  The failure to issue an SSOC to provide consideration of the ongoing claims constituted a failure to comply with procedural due process.  See 38 C.F.R. §§ 19.31, 19.37.  Accordingly, pursuant to 38 C.F.R. § 19.31, these issues must be remanded for the issuance of an SSOC.  See 38 38 C.F.R. § 19.31.

The matters are REMANDED for the following action:

The Agency of Original Jurisdiction (AOJ) should review the expanded record, to include consideration of the additional evidence associated with the claims file since the issuance of the March 2020 supplemental statement of the case and determine if the appeal can be granted.  If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case.  

After an opportunity to respond, the case should be returned to the Board for appellate review.

 

 

T. Reynolds

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Talamantes, 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.