Citation Nr: 21066788
Decision Date: 11/02/21	Archive Date: 11/02/21

DOCKET NO. 09-40 656
DATE: November 2, 2021

REMANDED

Entitlement to service connection for hypertension, claimed as the result of herbicide agent exposure, is remanded.  

Entitlement to service connection for a recurrent sleep disability, to include obstructive sleep apnea, is remanded.  

REASONS FOR REMAND

The Veteran had active service from March 1968 to January 1970.  He served in the Republic of Vietnam.  The Veteran had additional duty with the Army Reserve.  

The Veteran appeared at an April 2014 videoconference hearing before a Veterans Law Judge.  The hearing transcript is of record.  In August 2019, the Veteran was informed that the Veterans Law Judge who conducted the April 2014 Board hearing had left the Board and he therefore had the right to an additional hearing before a different Veterans Law Judge.  In September 2019, the Veteran indicated that he did not want an additional hearing.   

Entitlement to service connection for both hypertension claimed as the result 

 

of herbicide agent exposure and a recurrent sleep disability to include obstructive sleep apnea is remanded.  

In its November 2019 Remand instructions, the Board directed that "after completion of the above, the Regional Office must adjudicate the Veteran's claim to reopen the claim for service connection for posttraumatic stress disorder (PTSD)."  

An August 2021 supplemental statement of the case tacitly reopened and denied service connection for PTSD.  The Agency of Original Jurisdiction indicated that "the Board of Veterans Appeals remand dated November 20, 2019 remanded your appeal and added the previously denied issue of service connection for posttraumatic stress" and "the BVA added this issue because the other 2 conditions are claimed as secondary to the service connected posttraumatic stress disorder."  

A supplemental statement of the case may not announce a decision on an issue not previously addressed in a preceding statement of the case.  38 C.F.R. § 19.31.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007)."  The issue of whether new and material evidence had not been received to reopen the claim of entitlement to service connection for PTSD was not adjudicated in a rating decision or a statement of the case issued after the November 2019 Board Remand.  

The issue of whether new and material evidence has not been adjudicated in compliance with 38 C.F.R. § 19.31.  The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary.  Stegall v. West, 11 Vet. App. 268 (1998).  

The matters are REMANDED for the following action:

Adjudicate the issue of whether new and material evidence has been received to reopen the claim for entitlement to service connection for PTSD.  

(Continued on the next page)

 

.

 

 

J. T. HUTCHESON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Macek, M. A.

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.