Citation Nr: 21069323
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 18-09 292
DATE: November 18, 2021

REMANDED

Entitlement to an increased rating in excess of 10 percent for allergic rhinitis is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1993 to October 1999, with a period of active duty for training from September 1992 to March 1993.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). 

By way of background, in January 2020 the Board issued a decision upholding a reduction of the rating for allergic rhinitis from 10 percent to noncompensable, effective August 32, 2017, and denying an increased rating for allergic rhinitis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2021 Order, the Court implemented a Joint Motion for Partial Remand vacating and remanding the denial of an increased rating for allergic rhinitis. In September 2021 correspondence the Veteran knowingly, voluntarily, and intentionally waived the remainder of the 90-day window for the submission of evidence. Clark v. O'Rourke, 30 Vet. App. 92, 9799 (2018).

As to the propriety of the reduction, a stipulated settlement agreement executed at the same time as the Joint Motion for Partial Remand reflects that the parties agreed that restoration of the 10 percent rating for allergic rhinitis, effective August 23, 2017, was warranted. As the 10 percent rating has been restored as of the date of the original reduction, and the appeal as to that issue terminated, the reduction is no longer before the Board. The increased rating issue has been recharacterized to a 10 percent rating throughout the period on appeal. 

1. Entitlement to an increased rating for allergic rhinitis.

In September 2021 the Veteran submitted additional evidence in support of his appeal, along with a signed statement requesting that his appeal be remanded so that the RO may review the evidence in the first instance. 38 U.S.C. § 7105(e)(1), (2). As such, the appeal must be remanded so that the RO may consider the evidence in the first instance. Id.

The matters are REMANDED for the following action:

Readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case and afforded the applicable time period in which to respond.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wendell, 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.