Citation Nr: 1807077 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-08 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease (DDD) of L4-5, L5-S1, rated as 10 percent disabling from December 20, 2010, as 40 percent disabling from November 3, 2016, and as 20 percent disabling from October 12, 2017. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1982 to October 2004. The matter of an increased rating for a low back disorder is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In pertinent part, in that decision, a noncompensable rating in effect for the service-connected lumbar spine disorder was increased to 10 percent, effective December 20, 2010. The Veteran submitted a timely notice of disagreement (NOD) with this denial, and this appeal ensued. A Travel Board hearing was held in March 2016 before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record. In a September 2016 remand, it was noted that the issue of entitlement to a TDIU rating, to include on an extraschedular basis, had been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The claims were remanded for obtainment of treatment records and a contemporaneous examination addressing the severity of the Veteran's service-connected back disorder and the effect that his various service-connected disorders had on his ability to obtain gainful employment. Following review of additional treatment records and a VA examination report from November 2016, the RO, in a March 2017 rating decision, increased the 10 percent rating in effect for the low back disorder to 40 percent, effective November 3, 2016. The claim for a TDIU was denied. Review of the record reflects that VA examinations of the thoracolumbar and cervical spine were conducted in October 2017. Subsequently in an October 2017 rating decision, service connection was established for various disorders to include cervical spine degenerative arthritis with bulging disc, chronic neck and shoulder pain, pinched nerve, rated as 20 percent disabling; radiculopathy of the right upper extremity, rated as 40 percent disabling; radiculopathy of the left upper extremity, rated as 30 percent; radiculopathy of the left lower extremity (LLE) (femoral nerve), rated as 20 percent disabling; radiculopathy of the right lower extremity (RLE) (femoral nerve), rated as 10 percent disabling; and radiculopathy of the RLE, (sciatic nerve), rated as 10 percent disabling. The 20 percent rating in effect for LLE radiculopathy (sciatic nerve) was confirmed. The 40 percent rating in effect for the service-connected lumbar spine disorder was decreased from 40 percent to 20 percent. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager paperless claims file associated with the Veteran's claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND After the RO issued a March 2017 supplemental statement of the case (SSOC), new evidence was associated with the file that is relevant to the claims on appeal. Specifically, VA examinations of the thoracolumbar and cervical spine were conducted. The VA examiner also provided an opinion regarding the Veteran's employability. The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c) (2017). The Veteran has not submitted a waiver of AOJ consideration of the new evidence received since the March 2017 SSOC, and the AOJ has not issued an SSOC with consideration of the newly received evidence. On remand, the AOJ should issue a new SSOC that considers the evidence received since the March 2017 SSOC. In reaching this conclusion, the Board observes that the Veteran filed his substantive appeal in this case after February 2, 2013. For all substantive appeals received on or after February 2, 2013, if, either at the time or after the AOJ receives a substantive appeal, the claimant or the claimant's representative submits evidence to either the AOJ or the Board for consideration in connection with the issues on appeal, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative requests in writing that the AOJ initially review such evidence. Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). However, as this evidence does not appear to have been submitted by either the Veteran or his accredited representative, the claim must be remanded to the AOJ for readjudication with consideration of the newly received evidence. Moreover, as noted above, numerous claims were granted in an October 2017 rating decision. The claim for entitlement to a TDIU must also be readjudicated in light of the October 2017 opinion regarding employability and because of the additional service-connected disabilities. Accordingly, the case is REMANDED for the following action: The issues of entitlement to an increased rating for DDD of L4-5, L5-S1, rated as 10 percent disabling from December 20, 2010, as 40 percent disabling from November 3, 2016, and as 20 percent disabling from October 12, 2017; and entitlement to a TDIU should be readjudicated in light of the new evidence associated with the record. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with an SSOC and afforded the appropriate time period within which to respond thereto. Thereafter, the case should be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals 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. §§ 5109B, 7112 (2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals 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) (2017).