Citation Nr: 22017271
Decision Date: 03/24/22	Archive Date: 03/24/22

DOCKET NO. 16-02 412
DATE: March 24, 2022

REMANDED

Entitlement to service connection for a sleep disorder, to include as due to exposure to herbicides and/or secondary to a service-connected disability, is remanded.

Entitlement to service connection for a left testicular tumor, to include as due to exposure to herbicides, is remanded.

Entitlement to service connection for a left knee disability, to include as due to exposure to herbicides and as secondary to service-connected disability of the lumbar spine with neuropathy of each lower extremity, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from December 1968 through November 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  The Board previously remanded these issues in May 2019.  

1. Entitlement to service connection for a sleep disorder, to include as due to exposure to herbicides and/or secondary to a service-connected disability, is remanded.

2. Entitlement to service connection for a left testicular tumor, to include as due to exposure to herbicides, is remanded.

3. Entitlement to service connection for a left knee disability, to include as due to exposure to herbicides and as secondary to service-connected disability of the lumbar spine with neuropathy of each lower extremity, is remanded.

Additional evidence, including VA clinical records, VA examination reports and service treatment records, have been associated with the record, but have not been considered by the Agency of Original Jurisdiction (AOJ).  The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with his claim at that level.  See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  In December 2021, the Veteran and his representative were afforded the opportunity to waive preliminary AOJ review of the new evidence.  The letter informed the Veteran and his representative that if they did not respond within 45 days, the Board would assume that they did not wish to have the Board decide the appeal at this time and remand it for AOJ review.  Neither the Veteran nor his representative responded to this letter.  Accordingly, the appeal must be returned to the AOJ. 

The matters are REMANDED for the following action:

The AOJ should review the record, to specifically include all evidence received since the May 2020 supplemental statements of the case, and determine whether the benefits sought on appeal can be granted.  Unless the benefits sought are granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  

 

Thereafter, the case should be returned to the Board for appellate review.

 

 

J.N. MOATS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Joseph R. Keselyak, 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.