Citation Nr: 1621718 Decision Date: 05/31/16 Archive Date: 06/08/16 DOCKET NO. 10-26 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a higher initial rating for degenerative disc disease of the lumbar spine (low back disability), in excess of 10 percent from April 30, 2008 to November 9, 2015, and in excess of 20 percent from November 9, 2015. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION The Veteran is represented by: The American Legion ATTORNEY FOR THE BOARD Amanda Radke, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served honorably on active duty from January 1974 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted service connection for a low back disability, and assigned a 10 percent initial rating from April 30, 2008, the date of claim for service connection. In a November 2015 rating decision, an increased rating for the low back disability of 20 percent from November 9, 2015 was granted, along with two separate 10 percent ratings for bilateral lower extremity radiculopathy. The Veteran has not appealed the ratings for the bilateral radiculopathy; thus, the Board currently does not have jurisdiction over the issue of a higher initial rating for the bilateral radiculopathy. See Roper v. Nicholson, 20 Vet. App. 173 (2006); Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); see also 38 U.S.C.A. § 7105(b)(1) (2015). If the Veteran wishes to file a notice of disagreement regarding the disability ratings assigned for the bilateral radiculopathy, he has until November 16, 2015 to file an appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Initial Rating for Degenerative Disc Disease and Entitlement to TDIU The record reflects that the Veteran is receiving permanent North Carolina State disability or Social Security disability (SSA) since November 2010 due to the service-connected low back injury disability and associated radiculopathy; however, these records have not been associated with the claims file. VA has a duty to assist a veteran in the development of the claim, and this duty includes assisting the veteran in the procurement of pertinent treatment records, including SSA records. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). For this reason, a remand is necessary to obtain the SSA or state disability records. Furthermore, the Veteran stated in the December 2009 notice of disagreement that he was laid off from his job as a correctional officer because of the service-connected back disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals of Veterans Claims (Court) held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is part of an initial or increased rating appeal; therefore, the Board finds that this evidence has reasonably raised a claim for TDIU in conjunction with the appeal for a higher initial rating for the low back disability. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of any SSA or state decision awarding disability benefits for the Veteran, copies of all treatment (medical) records upon which any such SSA disability benefit award was based, and a copy of any treatment or medical records associated with any subsequent disability determinations by SSA. 2. Provide the Veteran with notice and development actions for the TDIU issue. 3. Then, readjudicate the issue of a higher initial rating for the low back disability and adjudicate the issue of TDIU. If the appeal remains denied, provide the Veteran and the representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).