Citation Nr: 18141015 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-23 134 DATE: October 9, 2018 REMANDED The claim of entitlement to a disability rating in excess of 10 percent for degenerative disc disease, prior to April 19, 2018, and in excess of 30 percent thereafter, is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is also remanded for additional development. Preliminary Matters The Veteran had honorable active duty service with the United States Army from October 1989 to January 2000. By way of background, in a May 2014 rating decision, the local Regional Office (RO) denied an increased rating in excess of 10 percent for degenerative disc disease. In June 2014, the Veteran timely filed a notice of disagreement (NOD) to the denial of an increased rating. A statement of the case (SOC) was issued in March 2016, and the Veteran filed his substantive appeal (VA Form 9) in May 2016. In June 2018, during the pendency of the appeal, the RO issued a rating decision which increased the Veteran’s evaluation for his service-connected degenerative disc disease to 30 percent, effective as of April 19, 2018. When a Veteran seeks an increased rating, it is generally presumed that the maximum benefit allowed is sought, and a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). The Board of Veterans’ Appeals (Board) notes that prior to his current representation, the Veteran was represented by Attorney Stacey Penn Clark. In August 2016, the Department of Veterans Affairs (VA) received a letter from Attorney Clark, indicating that her representation of the Veteran had been withdrawn. Thereafter, VA received a signed VA Form 21-22 in September 2016, changing representation from Attorney Clark to the Georgia Department of Veterans Service. The Board further notes that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In this case, recent VA treatment records indicate that the Veteran is currently unemployed. See November 2017 VA treatment record. There is no evidence that employment is not substantially gainful. As such, a claim for entitlement to a TDIU has been raised. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Since the March 2016 SOC, new pertinent medical evidence has been associated with the claims file. Specifically, the Veteran underwent a VA contracted examination in August 2018 to evaluate his service-connected degenerative disc disease. In addition, updated VA treatment records have been associated with the claims file. However, this additional, pertinent evidence has not been considered by the AOJ (Agency of Original Jurisdiction) in conjunction with the degenerative disc disease claim currently on appeal. A supplemental statement of the case (SSOC) must be furnished to the claimant when additional pertinent evidence is received after a SOC or the most recent SSOC has been issued. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. Furthermore, any pertinent evidence submitted by a claimant or his or her representative after an appeal is certified to the Board must be referred to the AOJ, unless such evidence is accompanied by a waiver of consideration by the AOJ or the Board determines that the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. 20.1304(c); see Disabled American Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (holding that appellants are denied “one review on appeal to the Secretary” when the Board considers additional evidence without having to remand the case to the AOJ for initial consideration, and without having to obtain the appellant’s waiver). Significantly, The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, 501, Pub L. 112-154, 126 Stat. 1165 (Aug. 6, 2012), however, amended 38 U.S.C. 7105 by adding new paragraph (e) and providing that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the claimant or his or her representative explicitly requests AOJ consideration. See 38 U.S.C. 7105(e); see also VA Fast Letter 14-02 (May 2, 2014). Although in the instant case, the Veteran’s substantive appeal (VA Form 9) with respect to the degenerative disc disease issue on appeal was filed in May 2016, the new medical evidence associated with the claims file, as mentioned above, were not submitted by the Veteran or his representative, but rather, they were generated by VA. Thus, the automatic waiver provision of 38 U.S.C. 7105(e) does not apply in this case. See 38 U.S.C. 7105(e) (providing for initial review by the Board “if the claimant or the claimant’s representative…submits evidence”) (emphasis added). Further, to the extent that the Veteran could waive AOJ consideration in the first instance of VA generated evidence such as the examination report and treatment records at issue, there is no such waiver here. Under these circumstances, the Board therefore has no alternative but to remand the claim on appeal to the AOJ for consideration of the evidence, in the first instance, and for issuance of an SSOC reflecting such consideration. Finally, the Board finds that the issue of the Veteran’s entitlement to a TDIU is inextricably intertwined with the claim remanded herein. Accordingly, the issue of entitlement to a TDIU must be held in abeyance pending adjudication of the aforementioned claim. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are “inextricably intertwined” where action on one matter could have a “significant impact” on the other). On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. (CONTINUED ON NEXT PAGE) 2. After completing all indicated development, the Veteran’s claims should be readjudicated, to include the issue of entitlement to a TDIU, based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issues on appeal, the SSOC should consider any new evidence received since the SOC issued in March 2016. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel