Citation Nr: 21069891
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 09-21 265
DATE: November 22, 2021

REMANDED

Entitlement to a rating greater than 20 percent for recurrent low back strain with degenerative changes at L4-5 and L5-S1 and disc bulge at L5-S1 (a low back disability), excluding three separate periods of temporary total disability rating due to convalescence, is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1980 to September 1992 and from December 2004 to September 2005. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in part, increased the Veteran's disability rating for his service-connected lumbar spine disability from noncompensable to 20 percent disabling effective August 7, 2006, one year prior to the Veteran's claim for an increased rating.

In April 2018 and December 2020, the Board remanded this matter for additional development.

1. Entitlement to a rating greater than 20 percent for recurrent low back strain with degenerative changes at L4-5 and L5-S1 and disc bulge at L5-S1 (a low back disability), excluding three separate periods of temporary total disability rating due to convalescence, is remanded.

2. Entitlement to a TDIU is remanded.

The record reflects that VA-generated evidence has been added to the claims file since this appeal was last adjudicated in the March 2021 supplemental statement of the case (SSOC).  In this regard, a VA back conditions examination report dated since the SSOC was added to the claims file in June 2021.  A new supplemental statement of the case (SSOC) was not issued with consideration of the new VA treatment records.  While 38 U.S.C. § 7105(e) provides an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal, this provision does not apply to VA-generated evidence, such as VA treatment records and VA examination reports.  38 U.S.C. § 7105(e).

In August 2021, the Board sent the Veteran and his representative a letter notifying them that this new evidence had been added to the claims file since the March 2021 SSOC and asking him to waive AOJ review of this evidence.  In September 2021, the Veteran specifically requested that his appeal be remanded to the AOJ for review of this evidence.  Therefore, a remand is required for the AOJ to consider this evidence in a SSOC.

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The matters are REMANDED for the following action:

Readjudicate the issues on appeal, ensuring that all relevant evidence is considered.

 

 

Megan R. Thomas

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	April Maddox, 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.