Citation Nr: 21072661
Decision Date: 12/03/21	Archive Date: 12/03/21

DOCKET NO. 18-28 505A
DATE: December 3, 2021

REMANDED

Entitlement to an evaluation in excess of 10 percent for service-connected left ankle injury is remanded.

Entitlement to a compensable evaluation for service-connected hematuria (claimed as urinary condition) is remanded.

Entitlement to an evaluation in excess of 40 percent for service-connected lumbosacral strain is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from February 1998 to February 2002.

1. Entitlement to an evaluation in excess of 10 percent for service-connected left ankle injury is remanded.

2. Entitlement to a compensable evaluation for service-connected hematuria (claimed as urinary condition) is remanded.

3. Entitlement to an evaluation in excess of 40 percent for service-connected lumbosacral strain is remanded.

4. Entitlement to a TDIU is remanded.

The Board notes that additional medical records were associated with the Veteran's claims file for his increased rating claims since his April 2018 statement of the case (SOC). Additionally, medical records were associated with the Veteran's claims file for his TDIU claim since his most recent March 2020 SOC.

On July 22, 2021, the Board sent the Veteran and his representative a letter asking whether he would like to waive review by the Agency of Original Jurisdiction (AOJ) of additional evidence associated with the file since the most recent SOC. The Veteran was notified that he had 45 days from the date of this letter to respond, and that, if he did not respond within 45 days, his appeal would be remanded to the AOJ for review. Neither the Veteran nor his representative responded. 

The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c). If the Board were to consider this evidence in the first instance, this potentially could be prejudicial because the Veteran, in effect, would "lose one bite of the apple," meaning the benefit of one level of judicial review. Cf., Bernard v. Brown, 4 Vet. App. 384 (1993).

As such, the claims for an increased evaluation related to his service-connected lumbosacral strain, left ankle injury, hematuria, and TDIU must be remanded for AOJ review.

The matters are REMANDED for the following action:

1. Associate with the claims folder updated treatment records.

2. Readjudicate the issues on appeal in light of all the additional evidence added to the record since the March 2020 supplemental statement of the case (SSOC). If any of the benefits sought on appeal are denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Adeleke, T.

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.