Citation Nr: 20005897
Decision Date: 01/23/20	Archive Date: 01/23/20

DOCKET NO. 17-54 832
DATE: January 23, 2020

REMANDED

Entitlement to an increased disability rating for degenerative disc disorder, arthritis, intervertebral disc syndrome, and stenosis of the lumbar spine, to include whether a reduction in rating from 20 percent to 10 percent effective September 1, 2016 was proper is remanded.

Entitlement to an increased disability rating for lumbar radiculopathy, left lower extremity associated with degenerative disc disorder, arthritis, intervertebral disc syndrome, and stenosis of the lumbar spine, to include whether a reduction in rating from 20 percent to noncompensable (zero percent) effective September 1, 2016 was proper is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran had active service from March 1985 to December 1995.

These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision rendered by the Regional Office (RO) of the Department of Veterans Affairs (VA).

The Board notes that in a September 2019 rating decision, the RO denied a claim of entitlement to TDIU.  The Veteran did not submit a notice of disagreement to that rating decision but rather in November 2019, he submitted a new claim of entitlement to TDIU as due in part to his service-connected degenerative disc disorder, arthritis, intervertebral disc syndrome, and stenosis of the lumbar spine and was provided a VA examination in December 2019.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As such, the Board finds that a new claim of TDIU has been raised in accordance with Rice.  

Higher evaluations for lumbar spine and left lower extremity disabilities and TDIU

A statement of the case (SOC) was issued for the Veteran’s lumbar spine and left lower extremity claims in September 2017.  Additional pertinent evidence, specifically CAPRI records and a VA examination dated December 2019 for the Veteran’s back and left lower extremity has since been associated with the claims file without a waiver of review.  Under this circumstance, the Board will remand this matter for agency of original jurisdiction (AOJ) consideration of the additional evidence received in the first instance and issuance of a supplemental statement of the case reflecting any further action required and consideration of that evidence.  See 38 C.F.R. §§ 19.31(a), 19.37(a).

Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such is raised by the record.  As noted in the Introduction above, the Veteran filed a claim for TDIU in November 2019 as due in part to his service-connected lumbar spine disability.  On remand, the AOJ should take any appropriate action deemed necessary to adjudicate his TDIU claim.

The matters are REMANDED for the following action:

Readjudicate the Veteran’s claims of entitlement to an increased disability rating for degenerative disc disorder, arthritis, intervertebral disc syndrome, and stenosis of the lumbar spine, to include whether a reduction in rating from 20 percent to 10 percent effective September 1, 2016 was proper as well as entitlement to an increased disability rating for lumbar radiculopathy, left lower extremity associated with degenerative disc disorder, arthritis, intervertebral disc syndrome, and stenosis of the lumbar spine, to include whether a reduction in rating from 20 percent to noncompensable (zero percent) effective September 1, 2016 was proper and entitlement to TDIU, to include consideration of all evidence received since the September 2017 SOC.  If the benefits sought on appeal remain denied, provide the Veteran and his representative an SSOC and an opportunity to respond.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Arif Syed, 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.