Citation Nr: 21061554 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-58 379 DATE: October 4, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for mechanical low back pain syndrome with mild disk space changes from July 22, 2012 to January 22, 2021 is remanded. Entitlement to a disability rating in excess of 20 percent for degenerative arthritis with degenerative disc disease of the lumbar spine with lumbago since January 22, 2021 is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1999 to April 2006. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO continued a 10 percent disability rating for the Veteran's mechanical low back pain syndrome with mild disk space changes. The Veteran disagreed with the decision in May 2014 and the RO continued the evaluation in a January 2015 rating decision. The Board remanded the claims on appeal in October 2020. At that time, the Board recognized entitlement to TDIU was raised by the record and part and parcel of the low back evaluation on appeal, as the Veteran had asserted that his low back disability prevented him from working in an October 2015 correspondence. In a February 2021 rating decision, the RO increased the rating for mechanical low back pain syndrome with mild disk space changes from 10 percent to 20 percent effective January 22, 2021, recharacterized the disability as degenerative arthritis with degenerative disc disease of the lumbar spine with lumbago, and denied TDIU. The RO also issued a February 2021 supplemental statement of the case (SSOC). 1. Entitlement to a disability rating in excess of 10 percent for mechanical low back pain syndrome with mild disk space changes from July 22, 2012 to January 22, 2021 is remanded. 2. Entitlement to a disability rating in excess of 20 percent for degenerative arthritis with degenerative disc disease of the lumbar spine with lumbago since January 22, 2021 is remanded. 3. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) is remanded. In a July 2021 letter, the Board notified the Veteran that additional relevant evidence had been associated with the claims file since the February 2021 SSOC. The new evidence in the claims file since the February 2021 SSOC that has not been considered by the AOJ, relevant to the claims on appeal, includes a June 2021 VA examination and documents pertaining to vocational rehabilitation from March and April 2021. The Veteran was advised that he had the right to request that the Agency of Original Jurisdiction (AOJ) review the additional evidence. The Board explained that if the Veteran did not respond in 45 days from the date of the letter, it would assume that he did not wish to have the Board decide his appeal at that time, and the case would be remanded to the AOJ for review of the evidence. To date, no response has been received. Therefore, the case must be remanded, as the automatic waiver provision does not apply for evidence associated with the claims file by VA. 38 U.S.C. § 7105(e)(1) (in effect during the pendency of the claim but repealed by the Appeals Modernization Act) (addressing when the claimant or representative "submits evidence," and providing that additional evidence submitted to the Board after the substantive appeal is filed is subject to initial review by the Board). The matters are REMANDED for the following action: Review the additional evidence received since the February 2021 SSOC. If the benefits sought are not granted in full, the Veteran and his attorney should be furnished a new SSOC reflecting consideration of the additional evidence and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.