Citation Nr: 22011971
Decision Date: 03/02/22	Archive Date: 03/02/22

DOCKET NO. 06-27 117
DATE: March 2, 2022

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1971 to April 1974. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2000 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO).

The Board previously denied entitlement to a TDIU in a December 2005 decision.  The Veteran subsequently appealed to the Court of Appeals for Veterans Claims (Court), and in a January 2007 Joint Motion for Remand (JMR), the parties determined that a remand was warranted and vacated the December 2005 Board decision. Thereafter, the Board readjudicated the appeal and, in a July 2007 decision, once again denied entitlement to a TDIU. The Veteran again appealed the Board's decision to the Court, and in June 2008, the Court vacated the July 2007 Board decision, remanding the matter for readjudication. The Board then remanded the issue of entitlement to a TDIU for further development in October 2008, September 2009, May 2011, and May 2018.

The Board most recently remanded this issue in March 2020. Under 38 C.F.R. § 19.31(c), the Agency of Original Jurisdiction (AOJ) is to issue a supplemental statement of the case (SSOC) when, pursuant to a Board remand, it develops evidence or cures a procedural defect. The only exceptions to this requirement are if: (1) the only purpose of the remand is to assemble records previously considered by the AOJ and properly discussed in a prior statement of the case (SOC) or SSOC, or (2) the Board specifies in the remand that a SSOC is not required.

In the instant case, the AOJ developed additional evidence following the March 2020 Board remand. A July 2020 VA addendum opinion and VA treatment records through August 2020 were obtained. An SSOC was issued in August 2020. However, subsequent to the August 2020 SSOC, the AOJ obtained additional evidence including December 2021 VA examination reports and opinions and VA treatment records pertaining to the claim for TDIU due to service-connected PTSD, diabetes mellitus, right knee retropatellar syndrome, left ear hearing loss, tinnitus and erectile dysfunction. The March 2020 remand did not explicitly indicate that an SSOC was not required. Additionally, the underlying purpose of the remand was not to assemble records previously considered by the AOJ and properly discussed in a prior SOC or SSOC. Accordingly, 38 C.F.R. § 19.31(c) entitled the Veteran to a SSOC regarding the TDIU claim. As such, the Board remands the issue for the issuance of a SSOC to correct this due process error. The AOJ will have opportunity to review the additional evidence submitted by the Veteran and his attorney.

The matter is REMANDED for the following action:

Readjudicate the issue on appeal taking into consideration the additional evidence received after the August 2020 Supplemental Statement of the Case, including VA treatment records, December 2021 VA examination reports, the contentions and private vocational assessment report submitted in November 2021, and private treatment records associated with the record since August 2020. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. 

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sarah Campbell, 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.