Citation Nr: 21069260
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 16-03 101
DATE: November 18, 2021

REMANDED

Entitlement to service connection for residuals of a broken right ankle/foot is remanded.

REASONS FOR REMAND

The Veteran served in active duty from June 1981 to June 1984.

This matter is on appeal from an April 2018 rating decision. The Veteran was afforded a November 2018 hearing before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the claims record. The Board remanded this appeal in March 2020 and May 2021 for additional development.

The Board notes that following the issuance of a June 2021 Supplemental Statement of the Case (SSOC), additional VA medical records were associated with the claims record. Review of the record shows the Agency of Original Jurisdiction (AOJ) has not issued a SSOC to the Veteran considering the submitted VA medical records from the VA medical center (VAMC).

The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran. See 38 C.F.R. § 20.1304 (c). Although initial AOJ review is automatically waived for evidence submitted by the Veteran because the Veteran's VA Form 9 is dated after February 2, 2013, the automatic waiver does not apply to VA-generated evidence. 38 U.S.C. § 7105 (e).

In September 2021, a waiver solicitation letter was sent to the Veteran, noting that if no response was received within 45 days of the letter, it would be assumed that the Veteran did not wish to have the Board decide the appeal at this time and to remand the appeal to the AOJ for review.

The Veteran responded in October 2021 and requested that the appeal be remanded to the AOJ for review of the additional evidence submitted in support of their appeal.

As such, the claim must also be remanded for initial consideration by the AOJ and issuance of an updated SSOC. See 38 C.F.R. §§ 19.31, 19.37, 20.1304.

The matters are REMANDED for the following action:

1. Obtain any outstanding private or VA treatment records.

2. After completion of the above and any additional development deemed necessary, the AOJ should readjudicate the Veteran's claims. If any determination is less than fully favorable, the Veteran and his representative must be furnished with an SSOC and given an opportunity to respond before the case is returned to the Board.

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Yang, Attorney-Advisor

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.