Citation Nr: 21002842 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 20-14 692 DATE: January 15, 2021 REMANDED Entitlement to service connection for right upper extremity carpal tunnel syndrome is remanded. Entitlement to service connection for left upper extremity carpal tunnel syndrome is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. Entitlement to a disability rating in excess of 40 percent for service-connected thoracolumbar spine degenerative disc disease is remanded. Entitlement to a disability rating in excess of 40 percent for service-connected left sciatic nerve radiculopathy is remanded. Entitlement to a disability rating in excess of 40 percent for service-connected right sciatic nerve radiculopathy is remanded. Entitlement to an effective date prior to June 20, 2016, for a grant of service connection for left sciatic nerve radiculopathy is remanded. Entitlement to an effective date prior to June 20, 2016, for the assignment of a 40 percent evaluation for service-connected thoracolumbar spine degenerative disc disease is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1979 to April 1983. The matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2016 and October 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Veteran’s attorney requested an extension of 90 days. In June 2020, the Veteran’s attorney requested an additional extension of time. In July 2020, the Board granted the additional extension of time. As the July 2020 extension of time has elapsed, the Board may proceed with appellate review. In October 2020, the Veteran’s attorney submitted a brief and a waiver of Agency of Original Jurisdiction (AOJ) consideration for evidence submitted with the brief. Under 38 U.S.C. § 7105(e), for cases in which substantive appeals are received on or after February 2, 2013, as is the case here, if the claimant or the claimant's representative submits evidence to the AOJ or the Board for consideration in connection with the issue on appeal, the Board may consider such evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review such evidence. This automatic waiver is an exception to the general requirement of a waiver of AOJ review or a Supplemental Statement of the Case considering new pertinent evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. In this regard, since the most recent February 2020 Statements of the Case (SOCs) issued for the appeal herein, additional relevant evidence in the form of VA treatment records and examinations, addressing the Veteran’s sleep apnea, carpal tunnel, back and radiculopathy disabilities were associated with the record. As noted above, the automatic waiver exception does not apply to evidence that was not submitted by the claimant or attorney/representative. Further the record reflects that in November 2020, the Board informed the Veteran that additional evidence had been associated with the claims file that contained information relevant to the issues on appeal but had not been previously considered by the AOJ. The Board requested that the Veteran submit an Additional Evidence Response Form indicating whether he would like the Board to remand this case back to the AOJ for review of the additional evidence in the first instance. The Board noted that if it did not receive a response within 45 days of the letter, it would remand the appeal to the AOJ for review. As no response has been received to date after 45 days of the letter, the Board will remand this case to the AOJ for readjudication considering the additional evidence in the first instance. Additionally, VA treatment records dated April 20, 2015 and April 18, 2017 show that the Veteran underwent audiometric testing as part of treatment for his bilateral hearing loss. The results from those tests are contained in an “audiogram display” currently not yet associated with the claims file. While on remand, those test results should be obtained and associated with the claims file. The matters are REMANDED for the following actions: (Continued on the next page)   1. Obtain any outstanding relevant records including any viewable in Tools/Audiogram Display, Vista Imaging, or any similar viewing tool, to specifically include the full results of the audiograms conducted during VA treatment on April 20, 2015 and April 18, 2017. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records in accordance with 38 C.F.R.§ 3.159(e). 2. Readjudicate the issues on appeal in light of all of the additional evidence added to the record since the February 2020 SOCs. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Richardson, 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.