Citation Nr: 21062415
Decision Date: 10/07/21	Archive Date: 10/07/21

DOCKET NO. 17-33 628
DATE: October 7, 2021

REMANDED

Entitlement to an increased disability rating for aortic valvular disease in excess of 30 percent prior to April 4, 2014, in excess of 60 percent from April 4, 2014 to June 11, 2014, in excess of 30 percent from June 11, 2014 to October 24, 2014, and in excess of 60 percent thereafter is remanded.

REASONS FOR REMAND

The Veteran served on active duty with the Army from July 1967 to January 1971 and from February 1991 to February 2008.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran's claim was remanded by the Board in a March 2019 decision.  The RO was directed to obtain records identified by the Veteran in an April 2014 VA Form 21-4142 and the June 2017 VA Form 9.  As the RO obtained the identified records, the Board finds that the RO has substantially complied with the March 2019 Board remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998).

Nevertheless, the Board finds that further development is needed for the Board to properly adjudicate the Veteran's claim.  

Entitlement to an increased disability rating for aortic valvular disease in excess of 30 percent prior to April 4, 2014, in excess of 60 percent from April 4, 2014 to June 11, 2014, in excess of 30 percent from June 11, 2014 to October 24, 2014, and in excess of 60 percent thereafter is remanded.

The Board notes that the agency of original jurisdiction (AOJ) last adjudicated the issues on appeal in a July 2020 supplemental statement of the case.  However, additional evidence, including relevant VA examinations completed in December 2020 and April 2021, has been associated with the record that has not been considered by the AOJ.  The appellate scheme set forth in 38 U.S.C. § 7104 (a) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level.  See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case (SSOC), it must prepare a supplemental statement of the case reviewing that evidence.  38 C.F.R. § 19.31 (b)(1).  There is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement.  38 C.F.R. § 20.1304 (c).  As such, in order to afford the appellant her full procedural rights, on remand, the AOJ must consider and address all of the evidence of record, including the previously obtained December 2020 and April 2021 VA examinations, in an appropriate supplemental statement of the case.  See 38 C.F.R. § 19.31.

The matters are REMANDED for the following action:

Readjudicate the claim on appeal.  If the issue remains denied, the Veteran should be provided with a SSOC, and afforded a reasonable period of time within which to 

 

respond thereto.

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Hartford, 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.