Citation Nr: 21042053
Decision Date: 07/11/21	Archive Date: 07/11/21

DOCKET NO. 08-08 049
DATE: July 11, 2021

REMANDED

Entitlement to an effective date earlier than December 21, 2011 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1976 to April 1977.  

This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office, in which the Veteran's entitlement to TDIU for the period beginning December 21, 2011 was granted.  The Veteran disagreed with the effective date of his entitlement to TDIU.

After two remands, the Board first denied the Veteran's entitlement to an earlier effective date for TDIU in its August 2018 decision.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a Joint Motion for Remand (JMR) in September 2019.  With the grant of the JMR, Board's August 2018 decision was vacated, and the matter was remanded for readjudication.

In March 2020, the Board once again denied the Veteran's entitlement to an effective date earlier than December 21, 2011 for the grant of TDIU, and the Veteran appealed this decision to the Court.  In December 2020, the Court granted a JMR, vacating the March 2020 Board decision, and remanded the matter for readjudication.  The Court found that the Board erred in failing to adequately consider factors related to the Veteran's mental and physical abilities to perform the tasks required for substantially gainful employment.       

Now the matter is returned to the Board.   

Notably, since the Court's grant of the JMR in December 2020, the Veteran submitted additional new evidence in June 2021 to support his claim.  See June 2021 Vocational Assessment.  In this regard, 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 consideration by the AOJ.  Here, through his representative, the Veteran expressly stated and emphasized that he does not waive a review of this evidence by the Agency of Original Jurisdiction (AOJ).  See June 4, 2021 Attorney Correspondence.  As the Veteran explicitly requested the AOJ's consideration of the additional evidence submitted in June 2021, the Board finds that a remand of the matter is warranted.  

Accordingly, the matter is REMANDED for the following action:

The AOJ must review the additional evidence submitted by the Veteran since the Court's grant of the JMR in December 2020, perform any necessary development, and readjudicate the matter.  If the Veteran's claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his attorney.  After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. E. Kim, 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.