Citation Nr: 21027934
Decision Date: 05/07/21	Archive Date: 05/07/21

DOCKET NO. 18-05 711
DATE: May 7, 2021

REMANDED

Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to December 17, 2017.

Entitlement to an initial rating in excess of 50 percent for PTSD since December 17, 2017.	

Entitlement to a total disability rating due to individual unemployability (TDIU) prior to December 17, 2017. 

REASONS FOR REMAND

The Veteran served on active duty from August 1995 to February 1996, from November 1998 to May 1999, and from February to August 2003.

In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ).  At this hearing, he testified that he wished to revoke his authorization of the American Red Cross as his representative, which he appointed in January 2018.  The VLJ advised him that he must revoke representation in writing and to date he has not done so.  Therefore, for VA purposes, the American Red Cross remains his representative before VA.  

The appeal was last adjudicated by the Agency of Original Jurisdiction (AOJ) in a September 2018 supplemental statement of the case (SSOC).  Since that time, additional, relevant VA mental health treatment notes have been added to the claims file.   

The law provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the veteran explicitly requests AOJ consideration.  See Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154, amended 38 U.S.C. § 7105.  

The substantive appeal was received in January 2018; however, that provision only applies to evidence submitted by the Veteran.  Thus, he is not presumed to have waived AOJ consideration of the VA treatment notes added to the claims file. Therefore, the appeal is remanded to allow for AOJ adjudication in light of the evidence added to the claims file since the September 2018 SSOC.

Additionally, entitlement to TDIU was also granted in the September 2016 rating decision, effective December 17, 2017, the date the rating for PTSD was increased to 50 percent and he met the schedular criteria for a TDIU.  However, a claim for a TDIU is also part and parcel of the pending increased rating claim for PTSD, and as that claim dates back to June 26, 2014, and the Veteran has not been employed since at least September 2015, the issue of entitlement to TDIU prior to December 17, 2017, is still before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 

The matters are REMANDED for the following actions:

1. Upon review of the additional evidence added to the file since the September 2018 SSOC, conduct any additional development deemed necessary.  

2. If the schedular criteria for a TDIU remain unmet for any period between June 26, 2014, and December 17, 2017, consider whether referral of the TDIU claim for extra-schedular consideration is warranted.

3. Readjudicate the issues on appeal in another SSOC in light of the additional evidence received since the September 2018 SSOC. 

 

 

L. HOWELL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. M. Schaefer, 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.