Citation Nr: 21070214
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 16-63 424
DATE: November 23, 2021

REMANDED

Whether new and material evidence has been received to reopen a previously denied claim for service connection for a respiratory condition manifested by respiratory distress, claimed as asbestosis, is remanded.

REASONS FOR REMAND

The veteran served on active duty from September 1970 to May 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a  December 2015 rating decision. 

The matter was previously remanded in September 2019 for further development.

Whether new and material evidence has been received to reopen a previously denied claim for service connection for a respiratory condition is remanded.

Remand is required for issuance of a Supplemental Statement of the Case (SSOC). Additional evidence received by the agency of original jurisdiction (AOJ) after the records have been transferred to the Board of Veterans' Appeals for appellate consideration will be forwarded to the Board if it has a bearing on the appellate issue or issues. The Board will then determine what action is required with respect to the additional evidence. 38 C.F.R. § 19.37(b). Evidence received by the AOJ prior to transfer of the records to the Board will be referred to the appropriate rating or authorization activity for issuance of an SSOC unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior SSOC or the additional evidence is not relevant to the issue on appeal. 38 C.F.R. § 19.37(a).

The record reflects that VA has associated to the claims file additional pertinent evidence since the July 2020 supplemental statement of the case (SSOC) that includes VA treatment records obtained in June 2021 and an October 2021 VA examination and medical opinion. Although the Board afforded the veteran an opportunity to waive consideration of this evidence by the originating agency, no waiver has yet been received by the Board. See BVA Letter (September 2021). Specifically, VA notified the veteran that he had a 45-day period to respond. If the Board had not heard from the veteran at the expiration of the 45-day period, the Board would remand the appeal to the AOJ for review. To date, no response has been received.

As the veteran has not waived the AOJ's  initial review of the newly associated evidence and the originating agency has not considered this evidence or issued a SSOC, the Board finds that remand is required so that the issue can be readjudicated and, if warranted, a SSOC issued. See 38 C.F.R. §§ 19.31(c), 19.37.

The matter is REMANDED for the following action:

Readjudicate the issue on appeal with consideration of the evidence added to the claims file since issuance of the most recent SSOC and, if the benefit sought on appeal is not granted in full, issue to the veteran and his representative a SSOC. 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Pendleton, N.

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.