Citation Nr: 23047005
Decision Date: 08/24/23	Archive Date: 08/24/23

DOCKET NO. 16-57 608
DATE: August 24, 2023

REMANDED

Entitlement to an initial disability evaluation in excess of 50 percent and to a disability evaluation in excess of 70 percent effective July 22, 2022, for service-connected posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 2009 to September 2013.

This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge (VLJ) via a virtual hearing in August 2020; a transcript is of record. The Board previously remanded this matter in April 2021, March 2022, and October 2022.

The RO issued a Supplemental Statement of the Case (SSOC) in April 2023, denying the Veteran entitlement to an initial disability evaluation in excess of 50 percent and a disability evaluation in excess of 70 percent from July 21, 2022, forward, for service-connected PTSD. Since that time, the VA received additional CAPRI records. When evidence is added to the claims file that was not considered by the Agency of Original Jurisdiction (AOJ) on the issue on appeal, the Board cannot consider that evidence, as it may not consider evidence in the first instance when adjudicating a claim. See 38 C.F.R. § 20.1034(c). However, the Veteran may waive the right to AOJ review of the new evidence.

In June 2023, the Board issued correspondence to the Veteran asking if he wished to waive AOJ evidence review of his medical treatment records obtained by VA after issuance of the April 2023 SSOC. In the correspondence, the Veteran was informed that if he did not respond within 45 days of the date of correspondence, the Board would assume that the Veteran did not wish for the Board to decide his appeal and that the Board would remand the matter to the AOJ for review.

To date, the Veteran has not responded to the June 2023 correspondence. Therefore, the Board assumes that the Veteran has not waived AOJ consideration of the above-mentioned evidence and remand is necessary for the AOJ to review the additional evidence submitted in his appeal.

The matters are REMANDED for the following action:

The RO should readjudicate the issue on appeal in consideration of evidence received after issuance of the April 2023 SSOC.

 

 

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Hoffman

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.