Citation Nr: A21020633 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 211130-200991 DATE: December 29, 2021 ORDER New and relevant evidence having not been received, the claim for entitlement to a total disability individual unemployability (TDIU) may not be readjudicated. FINDING OF FACT New and relevant evidence was not received after the October 2021 rating decision and prior to the November 2021 rating decision. CONCLUSION OF LAW The criteria for readjudicating the claim of entitlement to a TDIU are not met. 38 C.F.R. §§ 3.156(d), 3.2500, 3.2501. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1960 to November 1963. A rating decision was issued in December 2020 denying entitlement to a TDIU. In March 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the December 2020 rating decision. An HLR rating decision was issued in March 2021 that continued the denial based on the evidence of record at the time of the December 2020 rating decision. In August 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim for entitlement to TDIU. On October 29, 2021, the Agency of Original Jurisdiction (AOJ) issued a supplemental claim rating decision, which found new and relevant evidence to readjudicate the claim, and denied the claim on the merits. On November 8, 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim for entitlement to TDIU. On November 15, 2021, the AOJ issued the supplemental rating decision on appeal, which found new and relevant was not submitted to readjudicate the claim. In the November 30, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the November 2021 decision on appeal. 38 C.F.R. § 20.301. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). New and relevant evidence having not been received, the claim for entitlement to a TDIU may not be readjudicated A claim may be readjudicated based on new and relevant evidence. 38 C.F.R. § 3.156(d). New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. 38 C.F.R. § 3.2501(a)(1). In this case, the only document added to the claims file between the October 29, 2021 rating decision denying the claim, and the November 15, 2021 supplemental decision on appeal, is the November 8, 2021 supplemental claim. In that document, the Veteran wrote: Reconsider: IU: C&P examiner states Tinnitus impacts gainful employment. Veteran's monthly Psychologist, [R.P.] submitted a medical statement stating he's not fit for gainful employment. Letter is dated 8/26/2021. Behavioral health examiner annotates *Disturbances of motivation and mood, *Difficulty in establishing and maintaining effective work and social relationships. Hearing Loss was not asked for an opinion. This statement summarizes evidence that was previously part of the actual record before agency adjudicators at the time of the October 2021 rating decision. Therefore, it is not new. At most, the statement amounts to argument, which is not sufficient to serve as new and relevant evidence to readjudicate a claim. As new and relevant evidence was not submitted during the relevant evidence window, the claim may not be readjudicated. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.