Citation Nr: 21024261 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 08-17 357 DATE: April 22, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active service with the Army from November 1965 to November 1968. This matter is on appeal to the Board of Veterans’ Appeals (the Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2010, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. The Board most recently denied entitlement to a TDIU in August 2019. The matter returns to the Board from a United States Court of Appeals for Veterans Claims (the Court) Joint Motion for Remand (JMR) issued May 2020. The JMR vacated and remanded the August 2019 Board decision. The Court noted that the August 2019 denial found the Veteran was not precluded from sedentary work but the decision did not explain its interpretation of light or sedentary work, nor did the decision explain how his overall disability picture and vocational history did not prevent him from securing or following substantially gainful employment per Withers v. Wilkie, 30 Vet. App. 139 (2018). The August 2019 decision failed to provide an adequate statement of reasons and bases in assigning less probative value to the January 2018 vocational assessment as well as the April 2010 and July 2011 VA examinations. Finally, the Board must apply the holding in Ray v. Wilkie, 31 Vet. App. 58 (2019), the economic and non-economic component in determining whether the Veteran is able to secure and follow a substantially gainful occupation. The Board may not consider additional evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from the Veteran. See 38 C.F.R. § 20.1304(c). In June 2016, the RO issued a Supplemental Statement of the Case (SSOC). In June 2019, just prior to the Board’s August 2019 decision, the Veteran’s representative waived consideration of evidence by the AOJ. However, the Board notes that additional pertinent evidence was received and associated with the Veteran’s claims files since the August 2019 Board decision and a waiver has not been received. Updated VA treatment records were associated with the claims file in October 2019, November 2019, and September 2020. Additionally, he underwent VA examinations for his adjustment disorder with depressed mood and eye conditions in November 2019. In March 2021, the Veteran’s representative submitted a vocational assessment by Z.F. (M.Ed., CRC) with his appellate brief. The representative’s brief stated the Veteran did not waive RO consideration of Z.F.’s vocational assessment. Therefore, the claim must be remanded for initial consideration by the AOJ and issuance of a SSOC. See 38 §§ C.F.R. 19.31, 19.37, 20.1304. The matters are REMANDED for the following action: After completion of any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a SSOC and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.