Citation Nr: 20060243 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 13-05 332 DATE: September 14, 2020 REMANDED Entitlement to an evaluation greater than 10 percent for a low back disability, for the period prior to November 12, 2016 is remanded. Entitlement to an evaluation greater than 20 percent for a low back disability, for the period since November 12, 2016 is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (“TDIU”) is remanded. REASONS FOR REMAND The Veteran had active duty for training (ACDUTRA) service in the Army National Guard from June 1989 to September 1989 and a period of active duty service in the U.S. Army from May 1990 to March 1996. This matter is on appeal before the Board of Veterans’ Appeals (Board) from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board previously considered and denied the claim for an increased evaluation for a low back disability in December 2014. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which issued a December 2015 Order granting a joint motion for partial remand (JMPR). That Order vacated and remanded the portion of the December 2014 Board decision that denied entitlement to an increased evaluation for a low back disability. The Board then remanded the matter in March 2016 and issued another decision denying entitlement to an increased evaluation for a low back disorder in March 2017. The Veteran also appealed the March 2017 denial to the Court, which issued a September 2017 Order granting a joint motion for remand (JMR). In the course of the instant appeal, the RO issued an August 2017 rating decision that increased the evaluation of the Veteran’s low back disability to 20 percent effective November 12, 2016. The Board denied the increased rating claim again in its May 2018 decision. However, the Court has determined that a request for entitlement to a TDIU could be presumed in all claims for an increase in a disability evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, citing the Veteran’s statements that he had lost his job due to the limitations of his low back disability, the September 2017 JMR found that the Board’s March 2017 decision provided inadequate reasons and bases for its denial of entitlement to a TDIU. As such, the Board added entitlement to a TDIU to the issues on appeal in the May 2018 decision, but remanded the TDIU issue to the RO for further evidentiary development and to adjudicate the TDIU in the first instance. In September 2019, the RO issued an SSOC denying the Veteran’s claim for TDIU and the claim was subsequently returned to the Board. After the claim was returned to the Board, the Court issued a decision in January 2020 remanding the Veteran’s claims for entitlement to a disability rating higher than 10 percent for service-connected chronic lumbar strain (back disability) for the period before November 12, 2016, and a disability rating higher than 20 percent for the period thereafter. In sum, the Court determined that the Board’s May 2018 decision, failed to account for favorable evidence and relied on an inadequate medical examination. As such, the Court remanded this matter for further proceedings 1. Entitlement to an evaluation greater than 10 percent for a low back disability, for the period prior to November 12, 2016 is remanded. The Court found that the Board failed to recognize that this appeal stems from a July 2009 VA rating decision and it failed to address “whether the appeal period extends back to the July 2009 rating decision” based on a November 2009 statement that could be an unadjudicated Notice of Disagreement. The Board finds that the Veteran’s November 13, 2009 letter, in which he stated he was writing “in regard to an upgrade” of his 10 percent disability rating for his lower back, constitutes an informal Notice of Disagreement (NOD) with the disability evaluation assigned in the July 2009 rating decision and the letter was received within one year of the decision. However, due to the RO’s interpretation of the November 2009 letter as having constituted a new claim for an increased rating, as opposed to an NOD, a Statement of the Case (SOC) has not yet been issued on the question of whether an evaluation greater than 10 percent was warranted prior to November 2009. For example, when discussing the Veteran’s claim for a rating greater than 10 percent, the July 2010 rating decision only discussed the result of a December 2009 VA examination. The Court has held that, where a Veteran has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a SOC addressing the issue, the Board should remand the issue to the RO for issuance of a SOC. Manlincon v. West, 12. Vet. App. 238, 240-241 (1999). Upon remand, the RO should issue a SOC in response to the November 2009 informal NOD and determine whether a rating greater than 10 percent was warranted prior to November 2009. The SOC should discuss the results of the June 2009 VA examination and address the Veteran’s November 2009 contention that a higher rating was warranted because the VA examiner had diagnosed him with scoliosis and a history of right sided sciatica. 2. Entitlement to an evaluation greater than 20 percent for a low back disability, for the period since November 12, 2016 is remanded. For the period after November 12, 2016, the Court found that the August 2017 VA examination was inadequate and the Board’s reliance on it to deny a higher rating before November 12, 2016, was clearly erroneous. Specifically, the August 2017 VA examiner failed to record ROM results for pain on active and passive motion and whether there was pain with non-weight-bearing. The examiner noted that initial ROM testing measurements revealed abnormality and that appellant had pain on all motion as well as pain with weight bearing. Although the examiner stated that there was evidence of pain on weight bearing, the Court found that did not resolve the Correia errors because he did not state whether there was pain with non-weight-bearing or on active and passive motion in accordance with § 4.59, nor did he explain why such measurements were not possible or necessary. As such, the Board finds that remand is required for a new VA examination that complies with Correia and states whether there was pain with non-weight-bearing or on active and passive motion in accordance with § 4.59 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (“TDIU”). Because a decision on the remanded issues of entitlement to a disability rating higher than 10 percent for service-connected chronic lumbar strain (back disability) for the period before November 12, 2016, and a disability rating higher than 20 percent for the period thereafter could significantly impact a decision on the issue of entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (“TDIU”), the issues are inextricably intertwined. A remand of the claims for TDIU is required. Further, the RO failed to properly adjudicate the issue of TDIU when it issued an SSOC deciding the claim for the first time. Pursuant to 38 C.F.R. § 19.31, in no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case. The agency of original jurisdiction will respond to notices of disagreement on newly appealed issues not addressed in the Statement of the Case using the procedures in 38 C.F.R. §§ 19.29 and 19.30. In this case, while the RO stated in the SSOC that no new issues were being decided, neither the Board nor the RO had previously adjudicated the issue of TDIU. As such, on remand, and after contacting the Veteran and developing the evidence, the RO must issue a decision adjudicating the Veteran’s claim for TDIU in the first instance. The matters are REMANDED for the following action: 1. Issue a SOC in response to the Veteran’s November 2009 informal NOD, in which he disagreed with the July 2009 rating decision assigning a 10 percent evaluation for his low back disability. The SOC should discuss the Veteran’s contentions in the informal NOD and the results of the June 2009 VA examination. 2. Schedule the Veteran for a new VA examination for his lower back disability. The examiner’s report must document ROM results for pain on active and passive motion and whether there is pain with weight-bearing and non-weight-bearing. If the examiner determines that such measurements are not possible or necessary, they should explain why. 3. Contact the Veteran and develop all necessary evidence regarding the claim for TDIU. After so doing, adjudicating the TDIU claim in the first instance. Provide to him proper appeal rights if the decision is unfavorable. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the claim for an increased evaluation of the Veteran’s lower back disability. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. V., 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.