Citation Nr: 21072647 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 12-29 167 DATE: December 3, 2021 REMANDED Entitlement to service connection for a sarcoma, previously claimed as spots on the lungs (lung disability), to include as due to exposure to chemical and/or herbicide agents is remanded. Entitlement to service connection for ischemic heart disease to include double bypass (heart disability), to include as due to exposure to chemical and/or herbicide agents is remanded. Entitlement to service connection for hypothyroidism, to include as due to exposure to chemical and/or herbicide agents is remanded. Entitlement to service connection for diabetes mellitus, to include as due to exposure to chemical and/or herbicide agents is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1969 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in March 2015, July 2017, and September 2019. Unfortunately, the matters must be remanded again in order to allow for consideration of evidence submitted after the most recent adjudication by the Agency of Original Jurisdiction (AOJ). In April 2014, the Veteran testified before a Veterans Law Judge (VLJ) other than the undersigned. The VLJ who held the hearing is no longer employed by the Board. In May 2017 the Veteran was informed of such and was offered the option to appear for a hearing with a different VLJ or for the case to be considered on the evidence of record. In June 2017, the Veteran notified the Board that he did not wish to appear for another Board hearing and that his case should be considered based on the evidence of record. 1. Entitlement to service connection for a lung disability, to include as due to exposure to chemical and/or herbicide agents 2. Entitlement to service connection for a heart disability, to include as due to exposure to chemical and/or herbicide agents 3. Entitlement to service connection for hypothyroidism, to include as due to exposure to chemical and/or herbicide agents 4. Entitlement to service connection for diabetes mellitus, to include as due to exposure to chemical and/or herbicide agents 5. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability On January 6, 2021, the AOJ issued a Supplemental Statement of the Case (SSOC) readjudicating the Veteran's claim for service connection for a lung disability, heart disability, hypothyroidism, diabetes mellitus, and sleep apnea. On January 28, 2021, the Veteran submitted a personal statement regarding presence of and exposure to Agent Orange and/or defoliants while serving in Korea. He also submitted articles regarding Agent Orange in Korea. The Board notes that the January 28, 2021 evidence submitted by the Veteran was submitted after the most recent SSOC issued. As the Veteran's substantive appeal was filed prior to February 2, 2013, waiver of AOJ review of this additional evidence is not presumed. See 38 C.F.R. § 20.1305(c). In July 2021, the Board mailed the Veteran a letter indicating that a waiver was required in order for the Board to consider the January 28, 2021 evidence in the first instance. Further, the Veteran was advised that if he did not respond within 45 days, the Board would assume that he does not wish for his appeal to be decided at this juncture and that the matter will be remanded to the AOJ for review. The Board did not receive a waiver of consideration from the Veteran. Therefore, the matter must be remanded to allow for AOJ consideration of the evidence submitted on January 28, 2021. The matters are REMANDED for the following action: 1. After performing any necessary development, the AOJ must issue a new SSOC that considers all relevant evidence of record, to include the Veteran's statement and articles submitted on January 28, 2021. See VBMS entry entitled, "Correspondence," receipt date, "01/28/2021." A. Keninger Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.