Citation Nr: 20004010 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 14-28 685A DATE: January 16, 2020 REMANDED Entitlement to an initial increased rating for chronic cervical strain in excess of 10 percent prior to June 17, 2014, and in excess of 20 percent thereafter is remanded. Entitlement to an initial increased rating for chronic low back strain and mid back strain in excess of 10 percent prior to June 17, 2014, and in excess of 20 percent thereafter is remanded. Entitlement to an initial increased rating in excess of 10 percent for traumatic brain injury (TBI) is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2005 to August 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March and August 2010 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran requested a Board hearing on his August 2014 VA Form 9. The record reflects the Veteran withdrew his hearing request in the same month. Thus, the Board deems the hearing request withdrawn. Additionally, the Board notes the Veteran’s TDIU claim is part and parcel of the increased rating claims on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to increased ratings for chronic cervical strain and chronic low back/mid back strain are remanded. Remand is warranted for the agency of original jurisdiction (AOJ) to issue a supplemental statement of the case (SSOC). The Veteran’s claim of service connection for chronic cervical strain and chronic low back/mid back strain were adjudicated in the March 2010 rating decision. This decision granted service connection and assigned a 10 percent rating for both claims from August 31, 2009, the day after the Veteran’s discharge from service. In October 2010, the Veteran filed a timely Notice of Disagreement, and an SOC was issued in June 2014 and reflects the Veteran was assigned an increased stage rating for both claims to 20 percent from June 17, 2014, the date of the VA examinations noting increase in severity. The Veteran filed a timely Form 9 seeking an increased rating for these disabilities. In an April 2019 SSOC, the AOJ noted the issues on appeal were only entitlement to increased ratings in excess of 10 percent for both claims and failed to consider the assigned staged ratings for either claim. As these represent partial grants and the separate staged ratings were not addressed, the claims must be readjudicated and issuance of an SSOC is necessary. Additionally, prior to the transfer of the present matter to the Board, additional pertinent VA medical records were associated with the record. These records have yet to be considered by the AOJ. As such the claims must be remanded for consideration of this evidence. See 38 C.F.R. §§ 19.31, 19.37(a). The record does not contain a waiver of AOJ consideration. 2. Entitlement to an initial increased rating in excess of 10 percent for TBI is remanded. The Board finds an additional examination is needed to obtain the current severity of the Veteran’s TBI. The record reflects the Veteran last underwent VA examination in June 2014. Remand is necessary to determine the current severity of the Veteran’s disability. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that the examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). 3. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues could significantly impact a decision on the issue, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to TBI alone and discuss the effect of the Veteran’s TBI on any occupational functioning and activities of daily living. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran’s claims, to include the increased ratings for low back and cervical spine, as well as the inextricably intertwined claim for TDIU, should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his attorney a supplemental statement of the case (SSOC) and return the case to the Board. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, Associate Counsel 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.