Citation Nr: 21068612
Decision Date: 11/10/21	Archive Date: 11/10/21

DOCKET NO. 16-49 731
DATE: November 10, 2021

REMANDED

Entitlement to a rating in excess of 20 percent for spinal stenosis of the lumbar spine is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1961 to August 1962.  

The Veteran testified at a videoconference hearing before the undersigned in November 2018.  A transcript of the hearing is of record.  

The case was remanded by the Board for further development of the evidence in February 2019.  In a July 2020 decision, the Board denied entitlement to a rating in excess of 20 percent for spinal stenosis of the lumbar spine.  

The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to an March 2021 Order, following a Joint Motion for Remand (JMR).  The parties agreed that the Board erred in relying on a VA medical examination that was inadequate for rating purposes.  The parties agreed that although the October 2019 VA examiner had conducted range-of-motion testing and noted pain was present, the examiner did not indicate the exact degree of range of motion wherein the pain was observed.  

The record reflects that subsequent to the March 2021 JMR, the Veteran underwent a September 2021 VA examination of the lumbosacral spine.  As this new evidence was not submitted by the Veteran or his representative, and was received after records had been transferred to the Board, on September 8, 2021, the Board sent the Veteran and his representative a letter requesting waiver of this newly received evidence. The letter informed the Veteran that, if no response was received within 45 days, the Board would assume he did not waive the Agency of Original Jurisdiction's (AOJ) review, warranting remand. More than 45 days have passed since the issuance of the September 20201 letter and neither the Veteran nor his representative has responded.  Accordingly, the Board remands the Veteran's case so that the AOJ may conduct its initial review of the newly received evidence.  See 38 C.F.R. §§ 19.37, 20.1305(c).

The matter is REMANDED for the following action:

After completing any additional development deemed necessary, readjudicate the Veteran's claim, in light of the September 2021 VA examination report, as well as any other evidence that has been added to the claims file since the April 2020 Supplemental Statement of the Case. 

 

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Joseph P. Gervasio

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.