Citation Nr: 21069493
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 06-24 169
DATE: November 18, 2021

REMANDED

Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to November 26, 2013 is remanded.

REASONS FOR REMAND

The Veteran served active duty in the United States Army from September 1976 to September 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans affairs (VA) Regional Office (RO).  In an April 2016 rating decision, the RO granted TDIU effective November 26, 2013.

The claim was remanded in August 2014, June 2018, and January 2021 for further development, including obtaining records from the Office of Personnel Management and consideration of the claim by the Director of Compensation Services.  It has since been returned to the Board for appellate review.

Unfortunately, after review of the claims file, remand is necessary for the Agency of Original Jurisdiction (AOJ) to review and consider evidence that has been obtained following its last adjudication.  Specifically, the Board notes that, in compliance with the previous remands, the RO sent several requests to the Veteran and the Office of Personnel Management (OPM) attempting to obtain records related to his disability retirement from the National Parks Service.  After the issuance of the latest supplemental statement of the case (SSOC), in July 2021, VA received a response from OPM.  However, this evidence has not been considered by the AOJ.  Moreover, there is no waiver of the AOJ consideration, and it does not appear the evidence was submitted by the Veteran.  Therefore, the provisions of automatic waiver do not apply.  See 38 U.S.C. § 7105(e).  In light of this, remand is necessary for the AOJ's consideration of the evidence and an issuance of another SSOC.

The matters are REMANDED for the following action:

1. The AOJ should readjudicate the issue on appeal with consideration of all the evidence associated with the claims file.  If any benefit sought on appeal remains denied, issue a SSOC and allow the appropriate time for response.  Then, return the case to the Board for further appellate review.

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K.M. Walker

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.