Citation Nr: 21027603 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-29 551 DATE: May 6, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1980 to August 1983. This matter is before the Board of Veterans' Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal of a May 2011 rating decision. An August 2018 Board decision denied entitlement to a rating in excess of 30 percent for service-connected sinusitis and entitlement to a TDIU rating. The Veteran appealed that decision to the CAVC. A June 2019 CAVC Order vacated the Board's August 2018 decision and remanded it to the Board for further development and re-adjudication consistent with the terms of a June 2019 Joint Motion for Remand (JMR). In January 2020, the case was remanded for further development. [An interim ( August 2020 ) Decision Review Officer (DRO) decision increased the rating for chronic sinusitis to 50 percent (the maximum schedular rating) effective December 23, 2003 (the date the reopened claim was received by VA), resolving that matter. The Board also notes that the Veteran has not yet initiated an appeal of that decision.] A Supplemental Statement of the Case (SSOC), dated August 12, 2020, was issued for the Veteran's claim of entitlement to a TDIU rating. In correspondence dated August 21, 2020, the Veteran was informed that her appeal had been returned to the Board. In September 2020, (in response to the August 2020 SSOC), the Veteran submitted a statement indicating that it was not necessary for VA to wait for the 30 days to expire after the August 2020 SSOC, essentially indicating she had no additional evidence to submit for her TDIU claim. However, evidence (to include CAPRI records (for VA treatment from January to July 2020) received in September 2020 and the report of a December 2020 VA respiratory examination) received as part of the development for a separate asthma increased rating claim, was added to the record following the issuance of the August 2020 SSOC. [A December 2020 rating decision denied a rating in excess of 60 percent for asthma]. In April 2021, the Veteran was informed that her appeal had (again) been returned to the Board. The Veteran did not submit the evidence in question (the VA treatment records and examinations); the evidence was obtained by VA. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed at the Regional Office (RO) so as not to deprive the claimant of an opportunity to prevail with his or her claim at that level. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a SSOC, it must prepare a SSOC reviewing that evidence. 38 C.F.R. § 19.31(b)(1). [The Board finds that such evidence is relevant because it pertains to the current severity of the Veteran's service-connected asthma and sinusitis, which must be taken into consideration when determining entitlement to TDIU.] If, as here, evidence is received prior to the transfer of a case to the Board, a SSOC must be furnished to the Veteran and his or her representative, if any (as provided in 38 C.F.R. § 19.31), unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). [The Board notes that although the above evidence was received after the appeal returned to the Board in August 2020, (and would normally require that the Veteran be asked if she wanted to waive AOJ review of such evidence) it was still received and not properly considered (regarding its impact on a TDIU rating) prior to the appeal returning to the Board in April 2021.] Therefore, the Board finds that remand for the issuance of another SSOC is necessary. The matter is REMANDED for the following: Review the evidence received, to include the September 2020 CAPRI records, December 2020 respiratory disorders examination report, and any records submitted by the Veteran, arrange for any further development that is suggested by the evidence received, and readjudicate the claim for a TDIU rating. If the claim cannot be granted, provide the Veteran and her representative a SSOC addressing the TDIU claim. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.