Citation Nr: 21072984 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-42 453 DATE: December 7, 2021 REMANDED 1. Entitlement to a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome (IVDS) with degenerative arthritis changes is remanded. 2. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. 3. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 1982 to July 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied ratings in excess of 20 percent for lumbar spine IVDS with degenerative arthritis, and in excess of 10 percent, each, for radiculopathy of the right and left lower extremities. The TDIU issue has been added to the appeal because a TDIU claim is part of an increased rating claim when such claim is asserted by the Veteran or raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The matter was raised by the Veteran's representative, on behalf of the Veteran, in December 2020 written argument (and TDIU is thus part of the increased rating claims on appeal). 1., 2., 3. Entitlement to a rating in excess of 20 percent for lumbar spine IVDS with degenerative arthritis changes, to ratings in excess of 10 percent each for right and left lower extremity radiculopathy. Since the issuance of the May 2016 Statement of the Case, additional pertinent evidence (reports of VA examinations) was associated with the claims file. If new evidence is submitted from the Veteran or his representative with or after a substantive appeal received on or after February 2, 2013, it is subject to initial review by the Board unless the Veteran explicitly requests Agency of Original Jurisdiction (AOJ) consideration. See 38 U.S.C. § 7105 (e). This automatic waiver does not extend to evidence that was developed by VA. Here, September 2020 VA examinations for the Veteran's lumbar spine and right and left lower extremity radiculopathy were associated with the claims file. As these records were obtained by VA rather than the Veteran, there is no automatic waiver of AOJ review. Recognizing such, the Board requested a waiver of initial AOJ consideration of these records in a July 2021 letter sent to the Veteran and his representative. The Veteran was notified in this letter that he had 45 days to respond, otherwise the Board would remand his claims. The Veteran did not respond to the waiver request, and the 45-day period has elapsed. Accordingly, the issues are remanded to the AOJ for readjudication considering the additional evidence added to the record and issuance of a Supplemental Statement of the Case (SSOC), if warranted. 38 C.F.R. § 19.31. 4. Entitlement to a TDIU. As was noted above, a TDIU claim is part of an increased rating claim when such claim is raised by the Veteran, as is the case at present. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, such claim must be developed properly, to include for the information from the Veteran needed to decide such claim and for a further VA examination (or medical opinion), if necessary to decide the claim. Further, the claim of entitlement to TDIU is inextricably intertwined with the other claims being remanded (seeking increased ratings for lumbar spine and right and left lower extremity radiculopathy disabilities, as evidence or worsening of those disabilities would impact on the analysis of the TDIU claim). Therefore, consideration of the TDIU claim must be deferred The matters are REMANDED for the following: 1. Send the Veteran a TDIU application (VA Form 21-8940) and afford him ample for response (submission of a fully completed form). If he submits such application, arrange for any further development suggested by his response. 2. Review the evidence added to the record after the May 2016 Statement of the Case, arrange for any further development needed, and readjudicate the claims on appeal. [Advise the Veteran that the claim for TDIU will only be fully before the Board only if he perfects an appeal of a denial of such claim.] GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.