Citation Nr: 21065398 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-41 313 DATE: October 26, 2021 REMANDED The following issues are remanded for additional development: (1) entitlement to a disability rating greater than 10 percent prior to November 16, 2010, greater than 40 percent from November 16, 2010 to June 21, 2011, greater than 40 percent from October 1, 2011 to October 2, 2011, and greater than 60 percent from January 1, 2012 onward for spinal fusion (lumbar spine disability); (2) entitlement to a disability rating greater than 10 percent prior to January 8, 2020, and 20 percent thereafter, for a right lower extremity disability affecting the femoral nerve; (3) entitlement to a disability greater than 40 percent prior to June 4, 2013, greater than 10 percent from June 4, 2013 to January 8, 2020, and greater than 20 percent thereafter, for a right lower extremity disability affecting the sciatic nerve; (4) entitlement to a disability rating greater than 10 percent prior to September 28, 2020, and greater than 20 percent thereafter, for voiding dysfunction; (5) entitlement to a compensable disability rating for erectile dysfunction; and (6) entitlement to a total disability rating based upon individual unemployability (TDIU) prior to January 1, 2012. REASONS FOR REMAND The Veteran served on active duty from September 1999 to February 2000, October 2001 to July 2003, and April 2008 to January 2009, with additional service in the Air National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2014 and November 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran's claims file currently resides with the Los Angeles, California RO. In September 2018, the Veteran testified before the undersigned at a Board hearing. A transcript of the hearing is of record. Thereafter, in May 2019, the Board issued a decision (1) granting a 70 percent rating for major depressive disorder, and (2) restoring disability ratings for the Veteran's lumbar spine disability, a right lower extremity disability affecting the femoral nerve, and voiding dysfunction. Lastly, the Board remanded the issues of increased ratings for the lumbar spine, a right lower extremity disability affecting the femoral nerve, voiding dysfunction, and entitlement to a TDIU for additional development. Following the Board's May 2019 decision and remand, VA ROs issued rating decisions in July 2020, August 2020, and October 2020 addressing entitlement to a TDIU, a right lower extremity disability impacting the femoral nerve, and voiding dysfunction. However, as these increasesand the award of TDIU effective January 1, 2012did not represent a total grant of the benefits sought on appeal, these issues remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Lastly, the Board notes that the issues of entitlement to increased ratings for a right lower extremity disability impacting the sciatic nerve and erectile dysfunction were not addressed by the Board in May 2019. However, these disabilities are currently service-connected as related to the Veteran's lumbar spine disability. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine directs VA to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a. Accordingly, the Board has added entitlement to increased disability ratings regarding a right lower extremity disability of the sciatic nerve and erectile dysfunction to the current appeal and addressed them below. See also Chavis v. McDonough, 34 Vet. App. 1, 33-34 (2021) (finding that VA's consideration of a claimant's neurological manifestations was appropriate as they were part-and-parcel of the claimant's spine increased rating claim). Increased Ratings and Entitlement to a TDIU prior to January 1, 2012 In an October 2020 supplemental statement of the case (SSOC), the Agency of Original Jurisdiction (AOJ) adjudicated the issues of entitlement to increased ratings for a right lower extremity disability impacting the femoral nerve, a lumbar spine disability, and voiding dysfunction, as well as entitlement to a TDIU prior to January 1, 2012. Thereafter, the case was transferred back to the Board. In evaluating the Veteran's appeal, the Board must address evidence received since the October 2020 SSOC, but not yet considered by the AOJ via an additional rating decision or SSOC. Any pertinent evidence submitted by the Veteran or his representative after records have been transferred to the Board must be referred to the AOJ for consideration in the first instance, unless this procedural right is waived. See 38 C.F.R. § 20.1305. In this case, new evidence was associated with the Veteran's claims file after the transferring of the Veteran's appeal to the Board. Specifically, new VA treatment records were received in December 2020 and January 2021. These new VA treatment records could not have been considered at the time of the October 2020 SSOC. The Board sent the Veteran a waiver solicitation letter in June 2021 to ascertain whether it could review this newly-received evidence. The letter stated that the Veteran had 45 days to respond and, if no response was received, the Board was to assume that the Veteran did not want the Board to decide his appeal at the present time. The Veteran replied in August 2021 that he did not waive AOJ review and requested that the Board remand his case. Accordingly, the Board remands the Veteran's appeal for consideration of the above-identified new evidence by the AOJ in the first instance. The matters are REMANDED for the following action: After completing any additional development deemed necessary, readjudicate the Veteran's claims, in light of VA treatment records received in December 2020 and January 2021as well as any other new evidence submitted. If the benefits sought remain denied, provide an additional SSOC to the Veteran and his representative and afford them an opportunity to respond. Then, return the appeal to the Board, if in order. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.