Citation Nr: 21024895
Decision Date: 04/26/21	Archive Date: 04/26/21

DOCKET NO. 07-24 266A
DATE: April 26, 2021

REMANDED

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

REASONS FOR REMAND

The Veteran served honorably on active duty with the United States Air Force from August 1996 to May 2005.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2017.  A transcript of the hearing is associated with the claims file.

This case was most recently before the Board in January 2018, at which time the issue on appeal was remanded for additional development.  The case has returned to the Board for appellate consideration.  Regrettably, for the reasons discussed below, another remand is warranted.

Entitlement to a TDIU is remanded.

The Veteran’s claim for a TDIU must be remanded for issuance of a Supplemental Statement of the Case (SSOC).  Additional evidence received by the agency of original jurisdiction (AOJ) after the records have been transferred to the Board of Veterans’ Appeals for appellate consideration will be forwarded to the Board if it has a bearing on the appellate issue or issues.  The Board will then determine what action is required with respect to the additional evidence.  38 C.F.R. § 19.37  (b).  Evidence received by the AOJ prior to transfer of the records to the Board will be referred to the appropriate rating or authorization activity for issuance of an SSOC unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior SSOC or the additional evidence is not relevant to the issue on appeal.  38 C.F.R. § 19.37 (a).

In this case, the AOJ issued an SSOC concerning the issue of entitlement to a TDIU in September 2019.  Since that time, additional VA-generated evidence has been associated with the claims file, including VA treatment records and examination reports.  These records are relevant to the Veteran’s claim of entitlement to a TDIU.  In December 2020, the Board sent a  letter  to the Veteran notifying him and his attorney that new evidence had been added to the claims file and requested that he reply within 45 days if he would like to waive his right to AOJ review.  The letter explained that if he did not respond, the Board would assume he did not wish to have the Board decide his appeal at present time, and it would remand his appeal to the AOJ for review.  To date, neither the Veteran nor his attorney have responded to the letter.  Therefore, the Board will remand the claim for AOJ review of the additional evidence.

The matter is REMANDED for the following action:

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Readjudicate the appeal.  If the benefit sought remains denied, issue the Veteran and his attorney an SSOC and return the case to the Board for further review.

 

 

L. CHU

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. T. Raftery, 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.