Citation Nr: 21012842
Decision Date: 03/05/21	Archive Date: 03/05/21

DOCKET NO. 17-57 463
DATE: March 5, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1979 to August 1984.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2002 and April 2016 rating decision by the Department of Veterans Affairs (VA). A September 2020 Board decision found that TDIU was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue was remanded in the September 2020 Board decision for further development; it has since been re-assigned to the undersigned.

This issue was remanded by the Board in September 2020 to conduct additional development regarding entitlement to a TDIU. Other issues involving increased ratings for right and left foot disabilities on appeal in the September 2020 decision were vacated in a January 2021 Board decision; however, the issue of TDIU was not. The Agency of Original Jurisdiction (AOJ) did not issue a SSOC discussing and evaluating any new evidence.

Under 38 C.F.R. § 19.31(c), the AOJ must issue a SSOC pursuant to a Board remand unless the evidence was already considered in a prior Statement of the Case or SSOC or the remand instructions specified that issuance of a SSOC was not required. The September 2020 remand does not specify that an issuance of a SSOC was not required. Accordingly, remand is necessary for the AOJ to issue a SSOC considering all the evidence of record.

The matters are REMANDED for the following action:

1. The AOJ should obtain updated VA and non-VA treatment records.

2. The AOJ should readjudicate the issue on appeal. If any benefits sought are not granted, the Veteran and her representative should be provided with an SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

 

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	I. Kerner, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.