Citation Nr: 21005449 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-23 770 DATE: February 1, 2021 REMANDED Entitlement to a rating higher than 30 percent for posttraumatic stress disorder (PTSD), prior to October 5, 2009, higher than 50 percent from October 5, 2009 to December 14, 2018, and higher than 70 percent, thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to December 14, 2018, is remanded. REASONS FOR REMAND The Veteran had active service from January 1966 to March 1968. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2010 rating decision, the RO granted an increased evaluation of 50 percent for PTSD, effective October 2009. The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2015 by a Veterans Law Judge that is no longer employed at the BVA as a Judge. A transcript is associated with the claims file. In a March 2016 decision, the Board denied entitlement to a rating higher than 50 percent for PTSD and to a TDIU, from October 5, 2009. The Board also remanded the issues of entitlement to a rating higher than 30 percent for PTSD and to a TDIU, prior to October 5, 2009. The Veteran appealed the March 2016 Board decision to the Court of Appeals for Veterans Claims (Court); however, the parties submitted a Joint Motion for Partial Remand (JMPR) to the Court in January 2017. As a result, the Court vacated the Board’s denial of entitlement to a rating higher than 50 percent for PTSD and to a TDIU, from October 5, 2009, and remanded the issues back to the Board. In June 2017, the Board remanded these claims for additional development. A second hearing was conducted in July 2019 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In June 2020, the Board remanded these claims and directed the RO to review evidence received since the October 2018 supplemental statement of the case and to issue a supplemental statement of the case. On remand, the evidence was reviewed, and in an August 2020 rating decision, the RO granted a 70 percent rating for PTSD, effective December 14, 2018, a temporary total 100 percent evaluation, effective August 1, 2019, and a 70 percent rating, effective September 1, 2019. The RO also granted entitlement to a TDIU, effective December 14, 2018. A supplemental statement of the case was issued in August 2020 and the claim was certified to the Board. In September 2020, private medical evidence was submitted in support of the claims, without a waiver. In November 2020, the Veteran submitted a VA Form 20-0996, Request for Higher Level Review for the August 2020 rating decision, listing the issue of entitlement to a TDIU. The Veteran did not include the claim for entitlement to an increased rating for the Veteran’s PTSD on the request for higher level review; however, neither the Veteran nor his representative check marked the box indicating that the Veteran intended to opt into the modernized appeals system and withdraw his claims from the legacy system. To date, the AOJ has not adjudicated the issue of entitlement to a TDIU under the Higher-Level Review system. Because the November 2020 VA Form 20-0996 did not clearly express the Veteran’s intentions to withdraw any claims from the legacy appeal system, the Board is proceeding with its appellate consideration of the claims under the legacy appeal system. Of note, neither the Veteran nor his representative waived initial review by the RO of the evidence in support of his claims, which was received in September 2020. The Veteran’s VA Form 9, Appeal to Board of Veterans’ Appeals, was received prior to February 2, 2013, such that waiver of AOJ consideration is not presumed, as section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amended 38 U.S.C. § 7105 by adding new paragraph (e), is not applicable. As such, in a December 2020 letter, the Board notified the Veteran that he had the right to request that the RO review additional evidence added to the claims file after the most recent supplemental statement of the case. The Board explained that if the Veteran did not respond in 45 days from the date of the letter, it would assume that he did not wish to have the Board decide his appeal at that time, and the case would be remanded to the RO for review of the evidence. The Veteran did not reply to that letter. Therefore, a remand is required to have the RO review the additional evidence in connection with the appeal. The matters are REMANDED for the following action: The appeal should be reviewed by the RO on the basis of additional evidence, including all evidence received since the August 2020 supplemental statement of the case. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.