Citation Nr: 21005338 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-06 660 DATE: February 1, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine, for substitution purposes, is remanded. Entitlement to a disability rating in excess of 20 percent from April 26, 2013 forward for degenerative joint disease of the thoracolumbar spine, for substitution purposes, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), for substitution purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1975 to June 1977. These matters come 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) in Decatur, Georgia. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2019 travel Board hearing. A transcript of that hearing has been associated with the claims file. This claim was previously before the Board in February 2020, at which time the Board dismissed the claim for lack of jurisdiction due to the Veteran’s death in January 2020. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. Subsequently, the appellant requested substitution for the purposes of processing the Veteran's pending appeal and, in January 2021, VA granted the appellant substitution. As such, the Board notes that the Veteran’s widow is the appellant and this matter is once again before the Board. 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine is remanded. 2. Entitlement to a disability rating in excess of 20 percent from April 26, 2013 forward for degenerative joint disease of the thoracolumbar spine is remanded. Following the issuance of the statement of the case (SOC) in December 2016, additional VA medical evidence was added to the claims file, to include an additional VA thoracolumbar spine examination report in October 2019. There is no waiver of AOJ consideration of this evidence. As such, the Board finds that a remand is necessary for the AOJ to consider this new VA medical evidence, readjudicate the increased rating claim, and provide notice with an opportunity to respond to the Veteran and his current representative. 38 C.F.R. § 19.37(b). 3. Entitlement to a TDIU is remanded. The Board notes that the Veteran’s representative asserted the Veteran’s degenerative joint disease of the thoracolumbar spine renders him unemployable at the September 2019 Board hearing. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Further, because a decision on the above-remanded issue could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefit sought is not granted to the appellant’s satisfaction, send the appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.