Citation Nr: 21002636 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 20-09 506 DATE: January 14, 2021 REMANDED Entitlement to a rating in excess of 10 percent for residuals from lumbar discectomy is remanded. Entitlement to total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1957 to March 1959. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing before the Board. A hearing was scheduled in December 2020; however, the Board’s docket shows the hearing was cancelled by the Veteran. In December 2020, the Veteran’s representative asserted the hearing request was not withdrawn noting there was no documentation to that effect in VA’s Veterans Benefits Management System. Again, the Board’s docket reflects the hearing was cancelled and the Board finds no pending hearing request at this time. Notably, if the hearing was not cancelled then the Veteran failed to report for the hearing and another hearing would not be allowed absent a showing of good cause for missing the hearing and good cause for not timely notifying the Board that the Veteran could not attend a hearing, both of which would have needed to be submitted within 15 days of the December hearing, which did not happen in this case. See 38 C.F.R. § 20.603(d). However, as noted above, the Board’s docket indicates the hearing was cancelled by the Veteran. As this is considered by the Board to be a cancellation and not a failure to attend a scheduled hearing, if the Veteran would like to again request a hearing he may do so. To be clear, the Board finds there is no currently pending request for a hearing and action is necessary by the Veteran if he wants a hearing. The Board recognizes that in December 2020 the Veteran’s service representative attempted to raise the issue of entitlement to service connection for coronary artery disease as caused or aggravated by the Veteran’s various disabilities. The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. The Board notes that from March 26, 2018 to June 30, 2018, and from April 22, 2019 to July 31, 2019, the Veteran received a temporary total disability rating (100 percent) for surgical convalescence related to his lumbar spine disability. Furthermore, the Veteran has been rated as 100 percent disabled for his service-connected disabilities effective March 3, 2020. 1. Lumbar spine disability rating. Evidence received by the Agency of Original Jurisdiction prior to transfer of the records to the Board will be referred to the appropriate rating or authorization activity for issuance of a Supplemental Statement of the Case unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior Supplemental Statement of the Case or the additional evidence is not relevant to the issue on appeal. 38 C.F.R. § 19.37(a); see also 38 C.F.R. § 19.31(b)(1). In this case, the last Statement of the Case was issued in January 2020. In March 2020, additional evidence relevant to the issue on appeal was added to the file by VA, to include VA treatment records. The appeal was transferred to the Board in May 2020. The appeal must be remanded so that a Supplemental Statement of the Case may be issued that considers all evidence of record. Moreover, as noted, in March 2018 and April 2019, the Veteran underwent surgical repair of his lumbar spine disability. After receiving a temporary total disability of 100 percent for convalescence from both surgeries, the Veteran’s disability was then returned to the previous rating of 10 percent. The Veteran’s statements to medical providers suggest that his disability symptoms may have worsened since the Veteran’s last VA compensation and pension examination. Medical records indicate his mobility is limited and he now requires a motorized scooter. As such, an updated examination is necessary to determine the current level of disability. 2. TDIU. In December 2020, the Veteran’s service representative raised the issue of TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This issue is intertwined with the claim for an increased rating and must be remanded as well. The Veteran should be requested to provide employment and educational information in a VA Form 21-8940 so that VA can properly adjudicate his claim. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his low back disability. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Ask the Veteran to complete a VA Form 21-8940 and submit it to VA. Additional development deemed necessary to adjudicate the TDIU claim should then be undertaken. 3. After records development is completed, schedule the Veteran for a VA ¬¬¬spine examination to determine the current symptoms, level of severity, and functional impairment associated with his lumbar spine disability. The claims file should be reviewed by the examiner. The examiner is also asked to comment on any limitations as a result of the lumbar spine disability that may affect employment. E.g., pain would limit the ability to sit, stand, or walk for more than 20 minutes at a time; limitation of motion would preclude heavy lifting. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.