Citation Nr: 21062990
Decision Date: 10/12/21	Archive Date: 10/12/21

DOCKET NO. 17-48 118
DATE: October 12, 2021

REMANDED

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

REASONS FOR REMAND

The Veteran served on active duty from November 1984 to February 1985.

The matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Board remanded the claim in March 2019 for further development by the RO. The case has been returned to the Board for further appellate action.

Entitlement to a TDIU is remanded.

Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review.

The March 2019 Board remand directives instructed the RO to obtain outstanding VA treatment records and, following completion of all development and upon any denial of the claim, issue a supplemental statement of the case (SSOC) that addresses all relevant evidence of record, to include evidence received since the October 2017 SSOC. The Board finds that this was not done. 

Specifically, while the RO obtained outstanding VA treatment records and issued an SSOC upon denial of the claim in June 2020, the June 2020 SSOC did not address the multiple VA treatment records obtained by the RO. See VA treatment records received in January 2020, February 2020, and June 2020. The June 2020 SSOC does not include these records under the list of evidence reviewed or address them in the substantive discussion of the claim. Thus, it is not evident whether or not the RO considered this evidence, as required. The Board notes that these records address the Veteran's service-connected disabilities, to include his acquired psychiatric disorder, which is relevant to the claim. Furthermore, the records include clinical notes regarding the Veteran's reported employment history that are also relevant to the claim. Where the Board fails to ensure substantial compliance with a Board remand, further remand is appropriate. Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board also notes that multiple VA treatment records and examinations were added to the claims file after the June 2020 SSOC and after the appeal was certified to the Board. See July 2020 BVA docketing letter. Although there is no waiver of initial consideration by the agency of original jurisdiction (AOJ) of record, in light of the present remand of the claim on appeal, the Board finds that there is no prejudice to the Veteran. The AOJ will have the opportunity to review such records following the present remand.

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The matter is REMANDED for the following action:

1. Thereafter, the Veteran's claim should be readjudicated based on the entirety of the evidence, including the evidence not considered in the June 2020 SSOC. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided an SSOC and afforded the requisite opportunity to respond.

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Minaya, 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.