Citation Nr: 21068657
Decision Date: 11/12/21	Archive Date: 11/12/21

DOCKET NO. 16-73 599A
DATE: November 12, 2021

REMANDED

Entitlement to a rating in excess of 20 percent for lumbosacral strain, prior to November 21, 2019, and in excess of 40 percent thereafter, is remanded.

Entitlement to a separate compensable rating for left lower extremity radiculopathy prior to November 21, 2019, and in excess of 10 percent thereafter is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1977 to October 1994.

In January 2019, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) Central Office hearing.  A transcript of the proceeding is of record.  

The Board previously remanded the Veteran's case in April 2019.  Since that time, the Agency of Original Jurisdiction granted service connection for left lower extremity radiculopathy, as secondary to the Veteran's service-connected lumbosacral strain, with an initial rating of 10 percent effective November 21, 2019.  This was based in part on a November 2019 VA examination.  See May 2020 rating decision.  Based on the unique facts of this case, the Board considers the Veteran's left lower extremity radiculopathy rating to be part of his lumbosacral strain increased rating claim.  See Chavis v. McDonough, 34 Vet. App. 1, 14-17 (2021).

Finally, the Board notes that in June 2021 the Veteran submitted a supplement claim form and listed multiple issues, including "lumbosacral strain".  However, the Veteran did not check the box on the form indicating he wished to withdraw from the legacy appeals process.  Therefore, the Board will proceed to adjudicate the Veteran's appeal.

With regard to evaluation of the Veteran's lumbosacral strain and left lower extremity radiculopathy, evidence not submitted by the Veteran was received after issuance of a June 2020 supplemental statement of the case (SSOC).  See VA treatment records received June 29, 2021.  These records are pertinent to evaluating the Veteran's disabilities.  

In a September 2021 letter, the Board informed the Veteran of this evidence, and his ability to waive Agency of Original Jurisdiction (AOJ) consideration of it.  The Veteran responded and requested his appeal be returned to the AOJ for review of the additional evidence.  See correspondence received October 15, 2021.  

Therefore, remand is required to allow AOJ review of the evidence and issuance of a new rating decision or supplemental statement of the case.  See 38 C.F.R. §§ 19.37(b), 20.1305(c).

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The matters are REMANDED for the following action:

Readjudicate the issues on appeal, for the entire period on appeal.  If the benefits sought are denied in whole or in part, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.

 

 

V. Chiappetta

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Gregory T. Shannon, 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.