Citation Nr: 21040758 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-18 908A DATE: July 6, 2021 REMANDED Entitlement to a higher initial rating diabetes mellitus, type II, rated as 10 percent disabling for prior to January 25, 2011 and 20 percent thereafter, is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to an initial compensable rating for hypertension is remanded. Entitlement to service connection for hypogonadism is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for depression is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active naval service from September 1965 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2013, May 2013 and June 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2015, the Veteran requested that he be afforded a hearing before the Board. The Veteran was scheduled for the requested hearing in June 2019. The Veteran failed to report for his scheduled hearing without explanation and has not requested that the hearing be rescheduled. Therefore, the Veteran's hearing request is deemed to have been withdrawn. The Board finds that additional development is required before the claims on appeal are decided. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the agency of original jurisdiction (AOJ) so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally 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 or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). The record reflects that VA-generated evidence, to include multiple examinations and ongoing treatment records, has been added to the claims file since the claims were last adjudicated in an October 2016 supplemental statement of the case and a June 2015 statement of the case. Since those times, new supplemental statement of the case were not issued with consideration of the new VA examination reports and VA treatment records. 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 (applicable here), but does not apply to VA-generated evidence, such as VA examination reports or VA treatment records. 38 U.S.C. § 7105(e). In April 2021, the Board solicited a waiver of AOJ consideration of such newly received evidence from the Veteran and his representative. In this regard, the letter informed them that, if they did not reply within 45 days, the Board would assume that they did not wish to waive AOJ consideration of the additional evidence and would remand the case for AOJ review. To date, no response has been received. Therefore, a remand is necessary in order to allow the AOJ to consider the newly received evidence in the first instance. 38 C.F.R. § 19.31(b)(1). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records beginning December 2019. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following receipt of outstanding records, readjudicate the Veteran's claims based on the entirety of the evidence, to specifically include all evidence associated with the record since the issuance of the October 2016 supplemental statement of the case and the June 2015 statement of the case. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher O'Donnell, 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.