Citation Nr: 21040579
Decision Date: 07/06/21	Archive Date: 07/06/21

DOCKET NO. 16-01 084
DATE: July 6, 2021

THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).

REMANDED

Entitlement to a TDIU is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1973 to December 1976.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. Jurisdiction is currently with the RO in Winston-Salem, North Carolina.

This matter was last before the Board in September 2019, at which point it was remanded for further development.

Entitlement to a TDIU is remanded.

The record reflects that VA-generated evidence has been added to the claims file since the claims were last adjudicated in a December 2020 supplemental statement of the case (SSOC). In this regard, a pertinent December 2019 VA Rectum and Anus Conditions examination report that included an assessment pertinent to the Veteran's ability to work was added to the claims file after the issuance of the SSOC, and a new SSOC was not issued with consideration of the VA examination. Later in January 2021, the matter was returned to the Board. While 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a Veteran submits evidence to the AOJ or the Board with or after submission of a substantive appeal, this provision is only applicable to cases where the substantive appeal was filed on or after February 2, 2013, and does not apply to VA-generated evidence, such as a VA examination. 38 U.S.C. § 7105(e). As there is no indication that neither the Veteran nor his representative have specifically waived initial AOJ adjudication of the new VA examination (including in the May 2021 Appellant's Post-Remand Brief), a remand is required for the AOJ to consider this evidence in an SSOC. 38 C.F.R. § 19.37.

The matters are REMANDED for the following action:

Readjudicate the issue of entitlement to a TDIU. Consider all evidence received since the last AOJ adjudication, to include the January 2021 VA Rectum and Anus Conditions examination report.

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. E. Geary, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.