Citation Nr: 21000354 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 10-15 293 DATE: January 5, 2021 REMANDED Entitlement to higher initial ratings for low back strain, rated as 10 percent disabling prior to August 23, 2017, and as 20 percent disabling since August 23, 2017, is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of left ankle fracture is remanded. REASONS FOR REMAND The Veteran had active service from June 2003 to June 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his sister testified at a July 2012 Board hearing before a Veterans Law Judge (VLJ). A transcript of this hearing has been associated with the Veteran's claims file. In correspondence dated in October 2020, the Veteran was notified that the VLJ who conducted his July 2012 hearing was no longer employed at the Board, and was given the opportunity to testify before another VLJ. However, as the Veteran did not respond to this correspondence within 30 days, the Board assumes that he did not want another hearing and will proceed accordingly. The record reflects that the Veteran erroneously received correspondence in September 2020 indicating that he could request a virtual tele-hearing instead of waiting for a Travel Board hearing. Upon further review, the Veteran did not have a pending hearing request. As the Veteran provided testimony in a hearing before a VLJ in July 2012, the Board will consider the transcript of that hearing as evidence. As noted in the December 2013, April 2016, and April 2017 Board remands, the Veteran has not asserted, nor does the evidence of record reasonably raise the issue of, entitlement to a total rating based on individual unemployability. Consequently, the issue is not before the Board at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran seeks entitlement to higher initial ratings for his service-connected low back strain and residuals of left ankle fracture. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. These claims were most recently before the Board in April 2017, at which time they were remanded in order to obtain the Veteran’s updated VA treatment records and to schedule the Veteran for VA medical examinations to determine the nature and severity of his service-connected low back strain and residuals of a left ankle fracture. Crucially, the RO was then instructed to readjudicate the issues on appeal; if any benefit sought remained denied, then the RO was directed to issue a Supplemental Statement of the Case to the Veteran. Pursuant to the Board’s April 2017 Remand instructions, additional VA treatment records were added to the claims file in May 2017 and June 2017. He was then afforded a VA Ankle Conditions examination and VA Back (Thoracolumbar Spine) Conditions examination in August 2017. Based on the results of these examinations, in a November 2017 Rating Decision, the RO increased the evaluation of the Veteran’s low back strain to 20 percent disabling effective August 23, 2017, and awarded a separate grant of service connection for left lower extremity radiculopathy as secondary to his service-connected low back strain. The Board emphasizes that since this staged increased rating did not represent the maximum rating available for low back strain, the claim of entitlement to higher initial ratings for low back strain remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (providing that a claimant may limit his claim or appeal for a particular disability rating to less than the maximum allowed by law for a specific service-connected condition; but, where there is no clearly expressed intent to limit the appeal, VA is required to consider entitlement to all available ratings for that condition). The November 2017 Rating Decision did not address the claim of entitlement to a higher rating for residuals of left ankle fracture. Significantly, as emphasized by the Veteran’s representative in her July 2020 Informal Hearing Presentation, the issues on appeal remained denied and yet were never readjudicated in a Supplemental Statement of the Case, as specifically directed in the Board’s April 2017 Remand and as required by 38 C.F.R. § 19.31(c). See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders). As such, the issues must be remanded for issuance of a Supplemental Statement of the Case. See Stegall, supra. The matters are REMANDED for the following action: Following any additional development deemed appropriate based on the new evidence added to the record since issuance of the November 2016 Supplemental Statement of the Case, readjudicate the issues on appeal. In doing so, consider all relevant evidence added to the claims file since the most recent November 2016 Supplemental Statement of the Case, to include all VA treatment records and VA examination reports relevant to the Veteran’s claims of entitlement to increased ratings for low back strain and residuals of left ankle fracture. If any benefit sought is not granted, then the Veteran should be furnished with a Supplemental Statement of the Case, with copy to the Veteran’s representative, and afforded an opportunity to respond before the record is returned to the Board for further review. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.