Citation Nr: 21069859
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 16-51 222
DATE: November 22, 2021

REMANDED

Entitlement to a disability rating of 20 percent, but not higher, for radiculopathy of the left lower extremity (left radiculopathy) is remanded.

Entitlement to a disability rating in excess of 10 percent for radiculopathy of the lower right extremity (right radiculopathy) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1981 to February 1987 and from February 1991 to November 1995.  This case comes before the Board of Veteran's Appeals (Board) on appeal from a rating decision of January 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The Board briefly clarifies the scope of the issues remaining on appeal.  The Veteran's appeals had previously included the additional issues of service connection for bilateral ankle conditions, bilateral hearing loss, and tinnitus.  See March 2014 Notice of Disagreement (NOD); see also April 2016 NOD.  However, the record reflects that these issues have subsequently been granted either by the Board or by the RO.  See August 2019 Board Decision at 5 (granting claims for bilateral hearing loss and tinnitus); see also March 2021 Rating Decision (granting claims for bilateral ankle conditions).  Accordingly, only the claims presented above remain on appeal before the Board at this time.

The Board previously remanded these issues for further development, to include an updated VA examination.  See August 2019 Board Decision at 11; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (providing that a prior examination will generally remain adequate "except to the extent that the claimant asserts that the disability... has undergone an increase in severity since the time of the examination").  After reviewing the evidence of record, the Board finds that the RO has substantially complied with its remand directives and will therefore adjudicate the Veteran's remaining claims on the merits.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions).

1. Entitlement to a disability rating of 20 percent, but not higher, for radiculopathy of the left lower extremity (left radiculopathy) is remanded.

2. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the lower right extremity (right radiculopathy) is remanded.

The record reflects that VA-generated evidence has been added to the claims file since the Veteran's claim last adjudicated in a November 2020 supplemental statement of the case (SSOC).  While 38 U.S.C. § 7105(e) provides an automatic waiver of initial review by the agency of original jurisdiction (AOJ) if a Veteran submits evidence to the AOJ or the Board, this provision does not apply to evidence added to the file by VA, such as VA treatment records.  38 U.S.C. § 7105(e).

In September 2021, the Board wrote the Veteran to inform him that VA-generated evidence had been added to the record which had not been previously considered by the AOJ.  He was notified of his right to have the AOJ review the evidence and of the fact that he could waive that right by submitting a waiver in writing. The Veteran responded by correspondence dated in October 2021, requesting that his case be remanded to the AOJ for review of the additional evidence.  A remand is required.

The matters are REMANDED for the following action:

After completing any additional development deemed necessary, the issues on appeal should be readjudicated based on the entirety of the evidence, to particularly include evidence added to the claims file since issuance of the SSOC in November 2020.  If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

 

Richard Kettler

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Blore, Associate 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.