Citation Nr: 21071852
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 17-17 263A
DATE: December 1, 2021

REMANDED

Service connection for headaches is remanded.

Service connection for obstructive sleep apnea (OSA) is remanded.

Service connection degenerative arthritis of the thoracolumbar spine is remanded.

Service connection for a nerve disability is remanded.

Service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from December 1971 to November 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June and October 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).  In July 2020, the Board remanded this matter for further development.

Headaches

OSA

Thoracolumbar Spine

Nerve Disability

PTSD

The Veteran's claim was most recently adjudicated by the Agency of Original Jurisdiction (AOJ) in a January 2021 Supplemental Statement of the Case (SSOC).  Since that time, new evidence has been associated with the claims file, including VA outpatient records.  The evidence was generated by VA, and not provided by the Veteran.

The AOJ has not reviewed this evidence in the first instance, and the "automatic" waiver of such review by the AOJ for claims under appeal applies only to evidence submitted by the Veteran and not evidence generated by VA.  38 U.S.C. § 7105(e).  In August 2021, the Board notified the Veteran of the new evidence and that he may waive AOJ consideration of the new evidence.  In September 2021, the Veteran responded that he was not waiving AOJ consideration of the new evidence and wanted his case remanded for the AOJ to review the additional evidence.  Therefore, the matter must be remanded.

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The matters are REMANDED for the following action:

Readjudicate the issue on appeal, including review of the evidence added to the claims file since the January 2021 SSOC.  If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a new SSOC and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael Chandeck, Associate 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.