Citation Nr: 21068295
Decision Date: 11/09/21	Archive Date: 11/09/21

DOCKET NO. 14-34 087
DATE: November 9, 2021

REMANDED

Entitlement to an initial rating in excess of 20 percent for service-connected lumbar strain for the period prior to November 3, 2015 is remanded.

Entitlement to an initial rating in excess of 40 percent for service-connected lumbar strain for the period prior beginning November 3, 2015 is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from March 1990 to April 1996.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO).

Most recently, this appeal was before the Board in March 2021.  At that time, the Board remanded the claim for additional evidentiary development, specifically, a contemporaneous examination to assess the current severity of the Veteran's lumbar spine disability.  Based on the May 2021 examination, the AOJ readjudicated the claim in a June 2021 Supplemental Statement of the Case (SSOC) by denying the claim for increased staged ratings and returned the appeal to the Board for appellate adjudication.  

Following the June 2021 SSOC, additional pertinent private treatment records were associated with the claims file.  In a September 2021 letter, the Board notified the Veteran that additional records had been added to his claims file after the June 2021 SSOC.  The letter informed the Veteran that since the evidence was not previously considered by the RO, the Veteran could waive his right to review of this evidence by the AOJ in the first instance, which would thereby allow the Board with adjudication of the appeal.  The letter also notified the Veteran that if no response to the letter was received, the Board would assume he sought to have the appeal remanded for consideration of this evidence by the originating agency.  See BVA Letter dated September 2021.

To date, the Board has not received any response to its September 2021 notice letter requesting waiver from the Veteran of consideration of the additional evidence.  Therefore, to ensure due process law, remand is required.  

The matters are REMANDED for the following action:

1. Readjudicate the appeal with consideration of the evidence added to the record since issuance of the last Supplemental Statement of the Case (SSOC).  If the benefits sought on appeal are not granted, then provide the Veteran and his representative an updated SSOC that reflects consideration of the evidence added to the Veteran's claims file since issuance of the June 2021 SSOC.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Orie, 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.