Citation Nr: 21063956
Decision Date: 10/18/21	Archive Date: 10/18/21

DOCKET NO. 17-51 773
DATE: October 18, 2021

REMANDED

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

REASONS FOR REMAND

The Veteran served on active duty from October 1966 to August 1969.  The Department of Veterans Affairs (VA) is grateful for his service.  

In a June 2020 decision, the Board of Veterans' Appeals (Board) denied the appealed claim of entitlement to TDIU.  The Veteran appealed that claim to the United States Court of Appeals for Veterans Claims (Court), and the Court by a June 2021 Order approved a Joint Motion for Remand (Joint Motion) vacating that Board denial and remanding the case for action consistent with the Joint Motion.  

Entitlement to a TDIU is remanded.

The parties to the Joint Motion found inadequate reasons and bases in the Board's decision based on the Board's failure to address the fact that on March 10, 2020 the Veteran filed a request for a 30-day extension of time to respond to a February 8, 2020 Supplemental Statement of the Case (SSOC), but just eight days later, without replying to that request, the VA Regional Office (RO) returned the appeal to the Board without addressing the extension request.  (A review of the claims file reveals that the extension request, while dated on March 10, 2020, was actually not received until March 13, 2020.  The Board upon receipt of the docketed appeal, issued a letter on March 18, 2020 affording the Veteran 90 days from the date of the letter or until the Board issues a decision to request a change in representative or to submit additional evidence or argument.  The Board did not issue a decision until June 2020, and hence the Veteran and his representative had well in excess of 30 days in which to reply following the issuance of the SSOC, albeit that reply would have been directed at the Board rather than the RO.)  Thus, the Veteran was arguably denied the opportunity of full review of his appealed claim by the RO prior to transfer of the appealed claim to the Board based on such additional evidence or argument as the Veteran might have submitted in the 30-day interval requested following the RO's issuance of the SSOC.  It would thus be inappropriate for the Board to further address the claim without allowing the opportunity of the Veteran to have his appealed claim first further addressed by the RO, following his submission of additional evidence or argument, if he so desires, since such additional review entitlement has been in this case implicitly recognized by the Joint Motion.  Accordingly, based on the Joint Motion, the Board concludes that remand is warranted.  

The matter is REMANDED for the following actions:

1.  Afford the Veteran and his authorized representative the opportunity to submit additional evidence or argument in furtherance of the appealed claim.  Provide them with a 30-day interval in which to reply and provide them with a letter informing them of such additional time, with due consideration of their request for a 30-day extension submitted on March 10, 2020.  

 

1. Thereafter, readjudicate the appealed claim.  

 

 

L. CHU

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Schechter

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.