Citation Nr: 21066791
Decision Date: 11/02/21	Archive Date: 11/02/21

DOCKET NO. 16-19 862
DATE: November 2, 2021

REMANDED

Entitlement to a rating in excess of 10 percent prior to January 7, 2014, and in excess of 50 percent on and after January 7, 2014, for a not otherwise specified depressive disorder is remanded.

Entitlement to a rating in excess of 40 percent for sacroiliac arthroplasty with sacroiliac joint dysfunction and lumbosacral spine limitation of motion is remanded.

Entitlement to a rating in excess of 20 percent for right hip degenerative arthritis with tendinitis and sacroiliitis is remanded.

Entitlement to a rating in excess of 10 percent for left hip degenerative arthritis with tendinitis and sacroiliitis is remanded.

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

REASONS FOR REMAND

1. Entitlement to a rating in excess of 10 percent prior to January 7, 2014, and in excess of 50 percent on and after January 7, 2014, for a not otherwise specified depressive disorder is remanded.

2. Entitlement to a rating in excess of 40 percent for sacroiliac arthroplasty with sacroiliac joint dysfunction and lumbosacral spine limitation of motion is remanded.

3. Entitlement to a rating in excess of 20 percent for right hip degenerative arthritis with tendinitis and sacroiliitis is remanded.

4. Entitlement to a rating in excess of 10 percent for left hip degenerative arthritis with tendinitis and sacroiliitis is remanded.

5. Entitlement to a TDIU is remanded.

The claim of entitlement to a compensable rating for recurrent aphthous stomatitis ulcer, which was remanded with the claims set out above in the prior Board remand of November 2018, is not presently before the Board. The Agency of Original Jurisdiction (AOJ) has not yet completed its development of the claim. See July 2020 rating decision (deferring the claim for completion of a VA examination). The Board now turns to the claims presently on appeal.

Appellants are entitled to initial review by the AOJ of evidence added to the claims file by VA, and waiver of such review may not be presumed. See 38 C.F.R. § 20.1305. Here, since the July 2020 supplemental statement of case (SSOC), additional VA medical records have been added to claims file, to include VA treatment records and examination reports regarding the Veteran's claims. This evidence has not yet been addressed in either a rating decision or an SSOC. 

A letter was sent to the Veteran offering the option of a waiver of initial AOJ consideration. See August 2021 BVA Letter. In a September 2021 correspondence, the Veteran requested remand to the AOJ for review of the additional evidence. See correspondence received by VA in October 2021. Accordingly, the Veteran's claims must be remanded so that the AOJ may consider the additional VA-generated evidence.

The matters are REMANDED for the following action:

1. Obtain updated VA treatment records. 

2. The Veteran's claims should be readjudicated based on the entirety of the evidence. 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.