Citation Nr: 21074929
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 17-41 061
DATE:   December 16, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for degenerative disc disease (DDD) of the thoracolumbar spine with intervertebral disc syndrome (IVDS) and spinal stenosis is remanded.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1973 to June 1981 and from April 2003 to May 2004.

A Board of Veterans' Appeals (Board) hearing was conducted in July 2020 via videoconference, a transcript is of record. The hearing was before a now-retired Veterans Law Judge (VLJ). The Veteran was given the opportunity to request another hearing by VA written correspondence in October 2021. The Veteran was notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. The Veteran did not respond to the letter, and the Board will therefore proceed.

REASONS FOR REMAND

Increased Rating  DDD of the Thoracolumbar Spine

The record reflects that the Agency of Original Jurisdiction (AOJ) has been actively working on the issue of entitlement to peripheral neuropathy of the bilateral upper and lower extremities, associated with DDD of the thoracolumbar spine with IVDS and spinal stenosis, and accordingly the Board declines to take jurisdiction of that issue.

Subsequent to the October 2018 supplemental statement of the case (SSOC) for this appeal, the AOJ obtained new VA examinations in January 2021 to assess the severity of the Veteran's back disability as it relates to his associated peripheral neuropathy disabilities.

This evidence is pertinent to the issue on appeal. The VA examination report is VA-generated evidence not submitted by the Veteran or his representative and the automatic waiver provision of 38 U.S.C. § 7105(e) does not apply. Further, waiver of an SSOC is only applicable to evidence submitted by the Veteran or his representative. See 38 C.F.R. § 20.1305. As such, the claim must be remanded so that an SSOC addressing the additional VA-generated evidence may be issued. See 38 C.F.R. §§ 19.31, 19.37.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), it was held that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when such is raised by the record. While the record reflects statements regarding back pain and at the July 2020 Board hearing, the Veteran indicated that he had to leave his previous job due to his back pain, there is no evidence of record showing that the service-connected disability renders the Veteran unemployable. Further, a review of the record shows that he works as a volunteer firefighter and/or has been employed throughout the period on appeal. Accordingly, a TDIU claim has not been raised, and no action pursuant to Rice is necessary.

The matter is REMANDED for the following action:

1. Review all evidence associated with the record since the last SSOC, including the January 2021 VA examination report.

2. Readjudicate the Veteran's claim based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued an SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 

 

Mariah N. Sim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Frazier, 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.