Citation Nr: 22016204
Decision Date: 03/21/22	Archive Date: 03/21/22

DOCKET NO. 17-40 870
DATE: March 21, 2022

REMANDED

Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with history of cocaine and alcohol abuse is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from December 1982 to December 1986.  Her decorations include the Overseas Service Ribbon, the Army Achievement Medal, and the Army Commendation Medal.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office.

In March 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing has been associated with record.

Following the March 2021 hearing, the Board remanded the Veteran's case to the agency of original jurisdiction (AOJ) for additional development, to include obtaining updated VA treatment records and a new examination.  After taking further action, the AOJ confirmed and continued the prior 70 percent rating for PTSD and returned the case to the Board.  See April 2021 supplemental statement of the case (SSOC).

Entitlement to a rating in excess of 70 percent for PTSD is remanded.

Following the most recent readjudication of the Veteran's claim in an April 2021 SSOC, the AOJ added new medical evidence to her claims file, to include numerous VA treatment records.  While former 38 U.S.C. § 7105(e), as applicable to legacy appeals, provides an automatic waiver of initial AOJ review of any new evidence a veteran submits with, or after submission of, a substantive appeal, that provision does not apply to VA-generated evidence added to the file by VA.  38 U.S.C. § 7105(e) (2012).

The evidence in question is relevant to the claim on appeal and has not been reviewed by the AOJ in that context.  Thus, the Board sent the Veteran correspondence in January 2022 asking her whether she wished to waive her right to have the AOJ consider the evidence in the first instance.  She responded later that month, indicating that she did not wish to waive AOJ review.  In light of her response, a remand is required.  See 38 C.F.R. § 20.1305(c).

This matter is REMANDED for the following action:

After accomplishing any additional development deemed necessary (to include obtaining updated VA treatment records and a current VA examination, if indicated), readjudicate the issue on appeal based on the entirety of the evidence, to include any relevant evidence received since issuance of the SSOC in April 2021.  If the benefit sought remains denied, the Veteran and her representative should be issued  

another SSOC.  An appropriate period of time should be allowed for response.

 

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	John Kitlas, 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.