Citation Nr: 21070208 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 09-00 039 DATE: November 23, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for a lumbosacral strain with degenerative disc disease (previously evaluated as low back strain) prior to March 1, 2015 (exclusive of a temporary total evaluation from November 11, 2014, to March 1, 2015) and in excess of 40 percent thereafter (exclusive of a temporary total evaluation from May 4, 2020, to July 1, 2020), is remanded. Entitlement to an evaluation in excess of 20 percent for limitation of flexion of the right thigh prior to October 14, 2019, and in excess of 30 percent thereafter is remanded. Entitlement to an initial evaluation in excess of 10 percent for a left hip strain is remanded. Entitlement to an initial compensable evaluation for limitation of motion of the left thigh is remanded. Entitlement to an initial compensable evaluation for limitation of rotation of the right thigh is remanded. Entitlement to a compensable evaluation for a residual right femur scar status post surgery is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1971 to April 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2007, September 2011, and March 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In the September 2007 rating decision, the RO assigned the Veteran a temporary total evaluation due to convalescence after surgery for his right femur fracture, effective from September 7, 2006. A 20 percent evaluation was assigned thereafter effective from November 1, 2006. In the September 2011 rating decision, the RO granted service connection for a low back strain and a left hip strain and assigned separate 10 percent evaluations for each disability effective from March 28, 2011. In the March 2013 rating decision, the RO denied entitlement to TDIU. In March 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In June 2014, the Board remanded the case to the AOJ for further development. While the case was in remand status, in an October 2017 rating decision, the AOJ increased the evaluation for a lumbosacral strain with degenerative disc disease to 20 percent, effective from March 28, 2011. Nevertheless, the issue remained in appellate status, as the maximum schedular rating had not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). In the October 2017 rating decision, the AOJ also granted service connection for a residual lumbar spine scar status-post surgery and assigned a noncompensable evaluation, effective from November 11, 2014. In addition, in the October 2017 rating decision, the AOJ granted service connection for limitation of rotation of the right thigh status-post right femur fracture and assigned a noncompensable evaluation effective from October 20, 2005. The AOJ also granted service connection for limitation of motion of the left thigh due to left hip strain and assigned a noncompensable evaluation effective from March 28, 2011. The Veteran did not submit a notice of disagreement pertaining to these actions. Nevertheless, the AOJ included them on appeal in an October 2017 supplemental statement of the case (SSOC). Because the issues are intertwined with the increased rating claims for the residuals of a right femur fracture and left hip strain, these issues remain in appellate status, as the maximum schedular ratings have not been assigned. AB v. Brown, 6 Vet. App. at 38. In the October 2017 rating decision, the AOJ also granted service connection for a scar due to the residuals of a right femur fracture status-post surgery and assigned a noncompensable evaluation, effective from October 22, 2005. In April 2018, the Board remanded the case to the AOJ for further development. That development has been completed, and the case has since been returned to the Board for appellate review. Following the issuance of a January 2021 supplemental statement of the case (SSOC), private and VA treatment records were associated with the claims file. The Veteran has not submitted a waiver of the AOJ's initial consideration of the evidence, and a SSOC has not been issued. Moreover, in September 2021, the Board notified the Veteran that additional medical records were added to the claims file following the January 2021 SSOC. The Veteran was informed that he had a right to have the AOJ review the evidence before the Board or that he could submit a written waiver of the AOJ's initial consideration of the evidence. In an October 2021 response, the Veteran declined a waiver and requested that the case be remanded to the AOJ for review of the additional evidence submitted in his appeal. Therefore, a remand is necessary for the AOJ to review the additional evidence and issue a SSOC if the full benefits sought on appeal are not granted. The matters are REMANDED for the following action: The case should be reviewed by the AOJ on the basis of the additional evidence received since the January 2021 SSOC. If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.