Citation Nr: 21025957
Decision Date: 04/29/21	Archive Date: 04/29/21

DOCKET NO. 14-40 118
DATE: April 29, 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 June 1975 through June 1995.

As noted in the July 2020 Board Decision and Remand, the Veteran died in June 2015 during the pendency of the appeal and the Appellant has been substituted as claimant.

The Board notes that, in January 2021, the appellant’s representative withdrew from the case.  See January 2021 Withdrawal Letter.  Therefore, the appellant is currently unrepresented.

The July 2020 Board Decision and Remand remanded the above matter for the issuance of a supplemental statement of the case (SSOC).  The agency of original jurisdiction (AOJ) issued a December 2020 SSOC which continued to deny the claim of entitlement to a TDIU.  Subsequent to the December 2020 SSOC, VA received additional relevant records, including the medical records and opinions underlying the Social Security Administration (SSA) disability determination that was already of record.  This evidence has not yet been considered by the agency of original jurisdiction (AOJ).  

The Board notified the appellant of the receipt of additional evidence and informed her of her right to waive AOJ consideration of the evidence.  See March 2021 Correspondence.  The letter also informed the appellant that, if she did not waive AOJ consideration within forty-five (45) days of the date of the letter, the Board would assume that she did not want to have the Board decide her appeal and the Board would remand the claim.  More than forty-five (45) days have elapsed since the letter was sent, so the Board presumes the appellant would like the Board to remand the matter so that the AOJ will first review the additional evidence and issue an updated SSOC.

Absent a waiver and given the appellant’s failure to respond to the notification letter, the TDIU claim will be remanded.  See 38 C.F.R. § 20.1305(c).

The matters are REMANDED for the following action:

Readjudicate the issue on appeal.  If the benefit sought is not granted, send the appellant a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review. 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Kerry Hubers

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.