Citation Nr: 21027942 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 14-22 819 DATE: May 7, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to May 5, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1981 to June 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board notes that jurisdiction currently rests with the St. Petersburg, RO. In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Addressing the most relevant procedural history, this claim was most recently previously before the Board in September of 2020 at which time it was remanded for additional development. During the course of this remand, this claim was granted in effective May 5, 2014. In the rating decision of January 31, 2021, the RO characterized this as a "partial grant of benefits as the issue is still on appeal." The case has now been returned to the Board for further adjudication. Unfortunately, the record as it currently stands is not ready for appellate review. Specifically, the Veteran explicitly indicated, through his representative, in an April 2021 Appellate Brief that, "[t]t is not totally clear whether there is still a case or controversy to be decided in light of what the AOJ did while the appeal was in remand status. Assuming that there is a case or controversy to be decided, then it could only be that of an effective date earlier than May 5, 2014 for the grant of unemployability. Although we will address that issue, we believe there is a procedural defect that must be cured before the [B]oard will have jurisdiction to address [it]." In that regard, it was further asserted that the RO, "did not issue a supplemental statement of the case addressing the effective date issue" and "we also note that there are a number of VA exams in the file which have not been adjudicated and they all post-date the notification letter to the veteran on the unemployability issue. We decline to waive RO jurisdiction and request a remand so this evidence can be adjudicated by the RO. In addition, the RO/DCDROC should be instructed to issue an SSOC on the effective date issue in accordance with 38 C.F.R. 19.32 (2019)." See April 2021 Appellate Brief. As such, there has been no waiver of consideration of this new evidence by the RO, the agency of original jurisdiction (AOJ). As the Veteran has explicitly indicated, through his representative, that he wants his claim sent back to the AOJ for review of the additional evidence that was submitted in his appeal, the Board may not consider the evidence in the first instance. 38 C.F.R. § 20.1304 (c). As such, a remand is necessary so that the AOJ may review such evidence and, if necessary, provide the Veteran with a Supplemental Statement of the Case (SSOC). The matters are REMANDED for the following actions: 1. Provide the Veteran with VCAA notice requirements for a TDIU claim. Concurrently, reach out to the Veteran in order to obtain clarity on whether he wishes to pursue a claim for TDIU for the period prior to May 5, 2014. 2. If and only if the Veteran indicates that he would like to pursue this issue, readjudicate the issue of TDIU for the period prior to May 5, 2014 considering all evidence added to the record since the October 2019 SSOC. 3. If the benefits sought remain denied, issue the Veteran and his representative a SSOC and provide a reasonable opportunity to respond before returning the matter to the Board for further review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, Associate 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.