Citation Nr: 21073123
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 16-12 746
DATE: December 7, 2021

REMANDED

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

REASONS FOR REMAND

This matter was most recently before the Board of Veterans' Appeals (Board) in December 2020, when it was remanded for further development.  Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain any Veteran Readiness and Employment (VR&E) records that may be available for the Veteran.  After the AOJ issued a post-remand supplemental statement of the case (SSOC) in September 2021 but prior to the transfer of the appellate record back to the Board in October 2021, additional evidence was associated with the claims file regarding the Veteran's claim for VR&E benefits.  VA regulation prohibits the Board from considering this evidence in the first instance; therefore, the Veteran's appeal must be remanded to the AOJ for the issuance of a new SSOC.  See 38 C.F.R. § 19.37(a).

Further, in the previously issued September 2021 SSOC, it appears the AOJ only considered entitlement to TDIU based solely on impairment resulting from the Veteran's service-connected residuals of adenocarcinoma of the prostate.  While consideration of entitlement to TDIU based solely on impairment resulting from the Veteran's service-connected residuals of adenocarcinoma of the prostate is necessary in the context of this appeal as of March 26, 2019, the current effective date of the Veteran's 100 percent combined schedular rating, to the present, in accordance with Bradley v. Peake, 22 Vet. App. 280 (2008) and Buie v. Shinseki, 24 Vet. App. 242 (2011), the Board notes the rating period for this appeal dates back to April 1, 2015, so the AOJ must also considered TDIU based on impairment resulting from the combined effects of the Veteran's service-connected disabilities from April 1, 2015 through March 25, 2019, to ensure the Veteran is afforded due process.  See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003).

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The matter is REMANDED for the following action:

Readjudicate the Veteran's appeal based on all the evidence of record, to include, but not limited to, evidence associated with the claims file after the issuance of the September 2021 SSOC, explicitly providing consideration of entitlement to TDIU based on impairment resulting from the combined effects of the Veteran's service-connected disabilities from April 1, 2015 through March 25, 2019, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), and then TDIU based solely on the disabling effects resulting from the Veteran's service-connected residuals of adenocarcinoma of the prostate from March 26, 2019 to the present in the context of the implied issue of entitlement to special monthly compensation at the housebound rate in accordance with Bradley v. Peake, 22 Vet. App. 280 (2008) and Buie v. Shinseki, 24 Vet. App. 242 (2011).  If any benefit sought on appeal remains denied, issue a new SSOC and then return the appeal to the Board if otherwise in order.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, 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.