Citation Nr: 21073835
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 18-04 450
DATE: December 10, 2021

REMANDED

Entitlement to service connection for obstructive sleep apnea (OSA) is remanded.

Entitlement to service connection for a chronic seizure disorder is remanded.

Entitlement to a rating in excess of 50 percent for adjustment disorder with mixed anxiety and depressed mood is remanded.

Entitlement to a total rating by reason of individual unemployability due to service-connected disabilities (TDIU) prior to October 31, 2020, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 2010 to April 2014.  

The issues were previously before the Board in January 2020 and in February and March 2021.  On those occasions, the issues were remanded to for additional development.  Unfortunately, additional evidence has been received since the most recent supplemental statements of the case (SSOCs), and neither the Veteran nor his representative have waived initial Agency of Original Jurisdiction (AOJ) consideration of the newly received evidence; therefore, the case must again be remanded to ensure due process.  

Entitlement to service connection for OSA and a chronic seizure disorder, an increased rating for adjustment disorder and TDIU prior to October 31, 2020, is remanded.

As noted, the claims were last adjudicated by the AOJ in April 2021 and June 2021 SSOCs.  Since that time, additional pertinent evidence has been received by VA.  In August 2021 and October 2021, the Board sent the Veteran and his representative a letter requesting a waiver of initial AOJ consideration of evidence received since the most recent SSOC. The letter advised the Veteran that if he did not respond in 45 days, the Board would assume that he did not want the Board to decide his appeal at this time and that the Board would remand the appeal to the AOJ for review.  The Veteran has not waived initial AOJ consideration of the evidence, and the 45-day time limit has expired.  Accordingly, the claims are remanded for issuance of another SSOC.  38 C.F.R. § 19.31.  

The matters are REMANDED for the following action:

The Veteran and his representative should be furnished with a SSOC and provided an opportunity to respond.  If necessary, return the case to the Board for further appellate review. 

 

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Joseph P. Gervasio

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.