Citation Nr: 21061874
Decision Date: 10/05/21	Archive Date: 10/05/21

DOCKET NO. 17-13 359
DATE: October 5, 2021

REMANDED

Entitlement to a rating in excess of 20 percent for the period prior to June 7, 2019 and in excess of 40 percent thereafter for degenerative arthritis of the thoracolumbar spine (previously rated as residuals of low back injury) is remanded.

Entitlement to a rating in excess of 10 percent for hypertension is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from July 1983 to April 1987 and from September 1988 to March 1993.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ).

In June 2021, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record.

Here, the Veteran was issued a Statement of the Case (SOC) in February 2017.  However, since the issuance of SOC, additional information in the form of VA treatment records, VA examinations dated October 2019 and VA contract examinations dated May and June 2021, Social Security Administration (SSA) records, and lay statements have been associated with the claims folder.  

The additional information is pertinent evidence to the Veteran's increased rating issues on appeal and have not been considered by the Agency of Original Jurisdiction (AOJ) as required under 38 C.F.R. § 19.31(b)(1).  

The Board notes that initial AOJ review is automatically waived for evidence submitted by the Veteran or his representative if the Veteran's appeal to the Board is dated after February 2, 2013, as it is in this case where the appeal was certified in June 2017.  However, this automatic waiver does not apply to VA-generated evidence, such as VA contract examinations and medical records that were not submitted by the Veteran. 38 U.S.C. § 7105(e).  Further, waiver of the right to a SSOC that considers additional evidence is only applicable to evidence submitted by the Veteran or his representative. 38 C.F.R. § 20.1305. 

Accordingly, the claims on appeal must be remanded for consideration of the additional evidence and issuance of a SSOC. See 38 C.F.R. §§ 19.31, 19.37.

The matters are REMANDED for the following action:

Review the record and any newly added evidence including VA examinations in 2019, 2021, and SSA records associated with the claims file following the issuance of the February 2017 SOC, and readjudicate the claims on appeal.  

 

If the benefit sought on appeal remains denied, the agency of original jurisdiction should provide the Veteran and his representative with a SSOC.  An appropriate period should be allowed for response.

 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. A., 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.