Citation Nr: 21012007 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-08 992 DATE: March 3, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for the period on appeal prior to December 31, 2020; and in excess of 40 percent, thereafter, for traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran served on active duty service in the United States Army from May 1965 to May 1967. This matter comes before the Board of Veterans’ Appeals (Board) upon appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In September 2018 the Veteran filed a notice of disagreement (NOD) and in February 2020 the RO issued a statement of the case. In February 2020, the Veteran timely filed a substantive appeal and requested a videoconference hearing. In July 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been attached to the electronic record. The record of the hearing was held open 60 days for receipt of additional records of medical evaluations. In an October 2020 decision, the Board remanded this issue for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2019). 38 U.S.C. § 7107(a)(2) (2012). 1. Entitlement to a disability rating in excess of 10 percent for the period on appeal prior to December 31, 2020; and in excess of 40 percent, thereafter, for TBI. The Veteran is seeking a higher disability rating for his service connected TBI. The Veteran contends that the symptoms of his TBI have worsened since May 2018 and that the 10 percent rating does not contemplate the severity of his TBI symptoms. Review of the record reveals that on January 29, 2021, the Veteran was afforded a VA examination for his TBI and headaches. The Veteran also submitted a statement in support of his claim. In February 2021, updated VA treatment records pertinent to the Veteran’s claim were also associated with the electronic claims file. If new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. This automatic waiver does not extend to evidence that was developed by VA, such as evidence that was gathered separately and pursuant to the duty to assist. See 38 C.F.R. § 20.1304 (2018). Although the Veteran’s substantive appeal was filed after February 2, 2013, the above referenced records were obtained by the VA rather than the Veteran and there is no automatic waiver of AOJ review. In addition, the record reveals that the above evidence was added to the claims file after the issuance of the most recent supplemental SOC of record, which was issued January 8, 2021, and prior to the appeal’s certification to the Board in February 2021. Based on the foregoing, the Veteran’s claim must be remanded to allow for AOJ consideration of the additional VA examination and records. The matter is REMANDED for the following action: 1. The AOJ should obtain all outstanding VA treatment records and any private treatment records identified by the Veteran. All obtained records should be associated with the evidentiary record. 2. After all outstanding treatment records have been associated with the claims file, the AOJ should readjudicate the claim for entitlement to an increased disability rating for TBI. If any benefit sought remains denied, furnish the Veteran with a supplemental statement of the case and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, Associate 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.