Citation Nr: 21075057 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 15-04 601 DATE: December 17, 2021 REMANDED Entitlement to an initial compensable rating for traumatic brain injury (TBI) prior to June 1, 2016; in excess of 40 percent from June 1, 2016 to November 1, 2020; and in excess of 70 percent from November 2, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from a decision issued in March 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In July 2018, the Board remanded this matter for further development. In November 2020, the RO granted a 70 percent disability rating effective November 2, 2020 for the Veteran's TBI. However, this issue remains on appeal and before the Board as this action does not constitute a full grant on benefits on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to a VA Regional Office (RO) decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). TBI The Veteran contends that his residuals of his TBI are more severe than initially rated. In January 2021, VA obtained an examination based on a records review for the Veteran's headaches. The record indicates that the Veteran's service-connected headaches are a residual of the Veteran's TBI. Under 38 C.F.R. § 19.37 (a), evidence received by the Agency of Original Jurisdiction (AOJ) prior to the transfer of records to the Board after an appeal has been initiated will be referred to the appropriate rating or authorization activity for review and disposition. In such circumstances, a Supplemental Statement of the Case (SSOC) must be furnished to the veteran and any representative, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37 (a). In this case, the SSOC for an increased rating for a TBI was issued in November 2020, prior to the receipt of the January 2021 VA headaches examination report. The date of transfer of records to the Board was February 2021, when the AOJ sent a notice letter informing the Veteran that his appeal had been returned to the Board. The January 2021 VA headaches examination report was not duplicative evidence (not additional copies of records already collected) and is relevant to the issue on appeal. Notably, Veteran's appeal relates to residuals of his TBI. The Board notes that evidence is clear that Veteran's headaches is a residual of his TBI, although it is separately rated. The Veteran has not filed a waiver of AOJ review. Therefore, the evidence received by the AOJ prior to the transfer of records to the Board must be referred to the AOJ for initial review and disposition. 38 C.F.R. §§ 19.31. On remand, the AOJ must issue SSOCs that consider additional evidence of record received since the November 2020 SSOC. The matter is REMANDED for the following action: Readjudicate the issue on appeal. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.