Citation Nr: 21028815 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-32 143 DATE: May 12, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent prior to November 25, 2016, and in excess of 70 percent thereafter, for traumatic brain injury (TBI), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 29, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1973 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran submitted a Notice of Disagreement (NOD). Following the issuance of a Statement of the Case (SOC) in June 2016, the Veteran perfected a timely appeal via his submission of a VA Form 9 in July 2016. In his July 2016 VA Form 9, the Veteran requested a videoconference hearing before a Veterans Law Judge. However, in April 2021, the Veteran's representative submitted a statement, signed on behalf of the Veteran, indicating that the Veteran wished to withdraw his hearing request. Accordingly, the Veteran's hearing request is considered withdrawn. During the course of the appeal, a March 2018 rating decision increased the evaluation of TBI to 70 percent, effective November 25, 2016. In a June 2019 rating decision, the RO, inter alia, granted a total disability rating based on individual unemployability (TDIU), effective April 29, 2019. The Board notes that the Veteran filed a claim for TDIU during the course of the underlying issue on appeal. TDIU is considered part and parcel of the increased rating claim on appeal and, pursuant to Harper v. Wilkie, the Board must consider whether TDIU is warranted prior to April 29, 2019. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that a grant of TDIU for a portion of the appeal period does not bifurcate the appeal and, therefore, is considered a partial grant of the benefit sought); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for entitlement to an evaluation in excess of 10 percent prior to November 25, 2016, and in excess of 70 percent thereafter for TBI, is remanded. After a supplemental statement of the case (SSOC) was issued in March 2018, the agency of original jurisdiction (AOJ) obtained additional relevant VA treatment records and provided the Veteran with another VA residuals of TBI disability benefits questionnaire (DBQ) in May 2019. However, a SSOC has not been issued which considers this additional pertinent evidence. See 38 C.F.R. § 19.31(b); Sprinkle v. Shinseki, 733 F.3d 1180, 1184 (Fed. Cir. 2013) (noting that an SSOC is issued when additional pertinent evidence is received by the AOJ after the issuance of a SOC "[t]o ensure that claimants receive the benefit of this two-tiered review within the agency."). In January 2020, VA sent the Veteran and his representative a letter indicating that the Veteran could waive AOJ consideration of this additional evidence by completing the attached waiver form. The Veteran was advised that if he did not submit a waiver within 45 days, VA would presume that he did not wish to waive AOJ consideration, and the claim would be remanded for AOJ review in the first instance. To date, neither the Veteran nor his representative has not indicated that the Veteran wishes to waive AOJ consideration. Accordingly, a remand is necessary for the AOJ to consider this additional pertinent evidence in the first instance. See 38 C.F.R. § 19.31(b). As for entitlement to TDIU prior to April 29, 2019, that issue is intertwined with the issues being remanded herein and must be deferred pending adjudication of the other claims on appeal. Updated VA treatment records should also be requested. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records dated June 2019 to the present. 2. If the claims remain denied, provide the Veteran and his representative with an SSOC which considers all of the evidence associated with the record since the March 2018 SSOC was issued. A. J. Spector Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.