Citation Nr: 21067317
Decision Date: 11/03/21	Archive Date: 11/03/21

DOCKET NO. 17-14 049A
DATE: November 3, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for hypothyroidism is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1992 to December 2013. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veteran's Affairs (VA) Regional Office (RO). In June 2019, the Board remanded entitlement to a rating in excess of 10 percent for hypothyroidism. 

1. Entitlement to a rating in excess of 10 percent for hypothyroidism.

In response to the Board remand directives, the Veteran was scheduled for a VA examination to determine the current severity of his hypothyroidism in 2019. The Veteran did not appear for this examination; however, in December 2019, the Veteran notified the RO that he did not receive notice and requested an additional VA examination be scheduled for him to attend. The Veteran underwent a VA examination to determine the current severity of his hypothyroidism in November 2020. This examination was added to the Veteran's file since the last supplemental statement of the case (SSOC) was issued in July 2020. This examination was not reviewed by the agency of original jurisdiction (AOJ). Where evidence is obtained by the VA, the automatic waiver provision does not apply. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38U.S.C. §7105 and providing that, in cases where a substantive appeal was received on or after February 2, 2013, there is an automatic waiver of initial RO review if the Veteran or his/her representative submits evidence to the RO or the Board; however, the automatic waiver does not apply to VA-generated evidence). 

On August 5, 2021, a letter was mailed to the Veteran requesting a waiver of AOJ consideration of the December 2020 VA examination. The Veteran did not provide a waiver within the prescribed 45 days. Thus, as these records were not submitted by the Veteran and a waiver of initial AOJ consideration is not of record, the automatic waiver provisions do not apply. Accordingly, a remand is required for the AOJ to review the new evidence in the first instance and issue another SSOC if the claim is not granted in full. See 38 C.F.R. § §§ 19.31, 19.37(a). 

The matters are REMANDED for the following action:

1. Furnish the Veteran with an SSOC considering the December 2020 VA examination and readjudicating the Veteran's claim for an increased rating in excess of 10 percent for hypothyroidism.

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Associate Counsel, S. Conti

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.