Citation Nr: 21069882
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 17-20 907
DATE: November 22, 2021

REMANDED

Entitlement to a disability rating in excess of 40 percent for status post microdiscectomy with degenerative changes, lumbar spine, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 2000 to January 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

This matter was previously before the Board in February 2019 and was remanded for additional development. The case is once again before the Board.

Increased rating for a lumbar spine disability is remanded.

Appellants are entitled to initial review by the Agency of Original Jurisdiction (AOJ) of evidence added to the file by VA, and waiver of such review may not be presumed. See 38 C.F.R. § 20.1305. Additional evidence has been added to the file by VA since the last Supplemental Statement of the Case (SSOC) was issued in June 2020. Notably, additional VA treatment records were added to the record that relate to the Veteran's spinal disability. 

The Veteran has not submitted a waiver of initial consideration of the new evidence by the AOJ. An attempt to obtain a waiver was sent to the Veteran in September 2021, but the applicable time period has lapsed without a response. Therefore, the AOJ must be given an opportunity to consider this evidence and properly adjudicate the claim for an increase rating in the first instance.

The matter is REMANDED for the following action:

The Veteran's claim should be readjudicated based on the entirety of the evidence. 

If the benefit sought on appeal is not granted, the Veteran should be provided a SSOC and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issues on appeal, the SSOC should consider any new evidence received since the last SSOC. 

 

 

M. Donohue

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E.V. Palatt, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.