Citation Nr: 21072999
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 16-16 862
DATE: December 7, 2021

REMANDED

Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for fibromyalgia is remanded.

Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a back disability is remanded.

Entitlement to higher initial disability ratings for posttraumatic stress disorder (PTSD), rated as 50 percent prior to May 21, 2013, and 70 percent thereafter, is remanded.

Entitlement to higher initial disability ratings for instability of the left knee, rated as 10 percent prior to April 11, 2015, and 20 percent thereafter, is remanded.

Entitlement to a rating in excess of 10 percent for residuals of left knee injury. 

Entitlement to an effective date earlier than May 21, 2013, for the grant of a total disability rating for individual unemployability (TDIU) is remanded.

Entitlement to an effective date earlier than May 21, 2013, for basic eligibility for Dependents' Educational Assistance (DEA) under Chapter 35, Title 38, United States Code, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 1987 to April 1989.  

In September 2021, the Board dismissed the appeal due to the Veteran's death.  Thereafter, in November 2021, the appellant, the Veteran's surviving spouse, has been properly substituted as the claimant and as such, she continues the Veteran's pending claim on appeal to completion.  See 38 C.F.R. § 3.1010(a).

This case is not yet ready for appellate consideration.  A remand is necessary for the Regional Office (RO) to readjudicate the claims in light of new relevant VA evidence, which was added to the claims file without a waiver of Agency of Original Jurisdiction (AOJ) most recent consideration.

In this regard, the record shows that the RO issued a supplemental statement of the case (SSOC) in February 2019; subsequently however, relevant VA treatment records dated from March 2019 to March 2021 were associated with the claims file, with no subsequent SSOC.  Therefore, the Board may not consider the evidence in the first instance.  38 C.F.R. § 20.1304(c).  Also, due to the gap in treatment records until the Veteran's death, the RO should ensure that all outstanding VA treatment records are associated with the file. 

Notably, the issues of entitlement to an earlier effective date for TDIU and DEA benefits are dependent on any determination made regarding the increased rating claims on appeal.

The matters are REMANDED for the following actions:

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1.  Ensure that all outstanding VA treatment records are associated with the claims file.

2.  Then, readjudicate the claims on appeal in an SSOC while ensuring that all evidence added to the file after the last RO adjudication is considered.

 

 

L. Chu

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Yaffe, 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.