Citation Nr: 18112131 Decision Date: 06/18/18 Archive Date: 06/18/18 DOCKET NO. 14-39 712 DATE: June 18, 2018 REMANDED 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) and degenerative joint disease (DJD), lumbosacral spine, prior to July 13, 2010, and in excess of 40 percent, thereafter, is remanded. 2. Entitlement to a total disability rating based on individual employability (TDIU) prior to September 28, 2015. REASONS FOR REMAND The Veteran served on active duty from June 1970 to September 1993. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent rating for the DDD and DJD of the lumbosacral spine. In a September 2011 rating decision, the RO granted a 40 percent rating effective July 13, 2010. An August 2015 rating decision awarded TDIU effective September 28, 2015 to October 26, 2015. A claim for TDIU was received in June 2010 during the course of this appeal. Accordingly, the issue of entitlement to a TDIU for the appeal period prior to September 28, 2015 remains on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran failed to report for a scheduled Board hearing in July 2017 and has not shown good cause for his absence. His hearing request is deemed withdrawn. 38 C.F.R. §§ 20.702(d), 20.704(d). Entitlement to a rating in excess of 20 percent for DDD and DJD, lumbosacral spine, prior to July 13, 2010, and in excess of 40 percent, thereafter, is remanded. Entitlement to a TDIU is remanded. The Veteran seeks a higher rating for his lumbosacral spine disability. Following the issuance of the September 2014 statement of the case (SOC), and after the case was certified to the Board in June 2015, additional relevant evidence was added to the record. This evidence includes VA outpatient treatment records up through November 2015, which have not been considered by the AOJ with respect to the issue on appeal. Although the Veteran’s initial substantive appeal was received after February 2, 2013, the automatic waiver of initial RO consideration does not apply in this case because the evidence was obtained by the VA, rather than submitted by the Veteran. See 38 C.F.R. § 20.1304(c). In April 2018, the Board sent a form to the Veteran and his representative with the option to waive AOJ consideration in the first instance or remand for review. The accompanying letter stated that if a response was not received within 45 days, then the Board will assume the Veteran did not wish for the Board to decide the appeal at this time, and remand to the AOJ for review. As the 45 days have passed and no response was received, a remand is required for the issuance of a supplemental statement of the case (SSOC) after AOJ review. See 38 C.F.R. §§ 19.31, 19.37. In addition, updated VA medical treatment records should be obtained (including those from from the Austin Outpatient Clinic (OPC), Cedar Park Community Based Outpatient Clinic (CBOC), and Temple VA clinic annex). Finally, because a decision on the lumbosacral increased rating claim could significantly impact a decision on the issue of entitlement to a TDIU prior to September 28, 2015, the issues are inextricably intertwined. A remand of the claims for TDIU is required. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2015 to the present, including those from the Austin OIC, Cedar Park clinic CBOC, and Temple VA clinic annex. 2. A additional development warranted, readjudicate the appeal, to include consideration of a TDIU prior to September 28, 2015 and furnish the Veteran and his representative a supplemental statement of the case which addresses all of the evidence received into the record following the September 2014 SOC. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel