Citation Nr: 21069671
Decision Date: 11/19/21	Archive Date: 11/19/21

DOCKET NO. 15-29 638
DATE: November 19, 2021

REMANDED

Entitlement to a rating higher than 20 percent for service-connected residuals of bowel resection, status post colostomy and laparotomy, is remanded.

Entitlement to special monthly compensation (SMC) at the (s) rate (housebound rate) under 38 U.S.C. § 1114 as of May 1, 2009 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1981 to July 1992.  

This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The issues were previously before the Board in February 2019 and April 2021, where they were remanded for additional development.  

The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2017.  A transcript of the hearing is of record.

While the Board regrets further delay, the issues must once again be remanded. Additional VA treatment records were added to the claims file since the last Supplemental Statement of the Case (SSOC) as to this appeal was issued in June 2021, including a VA intestinal conditions examination.  VA regulations require that such evidence be submitted for consideration by the Agency of Original Jurisdiction (AOJ), unless the right to consideration by the AOJ is waived.  38 C.F.R. § 19.37, 20.1305(c).

Thus, in a September 29, 2021 correspondence, the Board asked the Veteran if she wished to waive AOJ review of the additional pertinent VA-generated evidence associated with the record.  The waiver request letter specifically notified the Veteran that if she did not respond within 45 days from the date of the letter, the Board would remand the appeal to the AOJ for initial consideration of the additional evidence.  No response or waiver was received.  As such, the Board must remand the issues for AOJ review.  See 38 C.F.R. § 19.31 (a Supplemental Statement of the Case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued).

The matter is therefore REMANDED for the following action:

Review the additional evidence added to the record since the June 2021 SSOC pertaining to these issues, complete any development deemed necessary in light of the new evidence, and readjudicate the claims.

 

 

P.M. DILORENZO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Scarduzio, 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.