Citation Nr: 21066120
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 17-31 771
DATE: October 28, 2021

REMANDED

Entitlement to an initial rating in excess of 40 percent for back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1975 to November 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision granting service connection for back disability and assigning a 10 percent rating.  In February 2019, the Board remanded the issue for additional development.  In a March 2020 rating decision, the Veteran's rating for back disability was increased to 20 percent, effective December 10, 2019.  In September 2020, the Board remanded for additional development.  

In a March 2021 rating decision, the Veteran's rating for back disability was increased to 40 percent throughout the claims period.  As the increase does not represent a full grant of the benefit sought, the claim remains before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993).

1. Entitlement to an initial rating in excess of 40 percent for back disability is remanded.

Following the issuance of the March 2021 supplemental statement of the case (SSOC), a June 2021 VA back examination was added to the Veteran's claims file.  The June 2021 VA examination is pertinent to the Veteran's increased rating claim.  In September 2021, VA sent the Veteran a letter requesting that he indicate whether he wished to waive initial agency of original jurisdiction (AOJ) consideration of the new evidence.  While the Veteran returned the form signed, he did not make an election indicating whether or not he wished to waive his right to have the case remanded for the AOJ to review the additional evidence.  Accordingly, the Board cannot presume he waives his right to have the additional evidence reviewed in the first instance by the AOJ and, therefore, the matter must be remanded for the AOJ to consider the additional evidence and issue a new supplemental statement of the case.  See 38 C.F.R. § 20.1305(c).

While this matter is on remand, any outstanding VA treatment records should be obtained, including VA treatment records from March 2021 to the present.

The matters are REMANDED for the following action:

1. Obtain any additional VA treatment records, to include VA treatment records from March 2021 to the present.  

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2. After completing the above, and any other development deemed warranted, readjudicate the Veteran's claim for an initial rating in excess of 40 percent for back disability, to include consideration of all evidence received since the March 2021 SSOC.  Unless the benefits sought are granted in full, issue an SSOC and return the case to the Board.

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Purcell, Amy

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.