Citation Nr: 21009102 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 08-21 958 DATE: February 19, 2021 REMANDED Entitlement to a rating in excess of 40 percent for lumbosacral strain with degenerative joint and disc disease is remanded. Propriety of the assignment of a separate rating for left lower extremity radiculopathy, evaluated as 10 percent disabling as of December 18, 2014, and 40 percent disabling as of June 4, 2019, is remanded. Propriety of the assignment of a separate rating for right lower extremity radiculopathy, evaluated as 40 percent disabling as of June 4, 2019, is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee with degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent (exclusive of the time period where a total rating has been assigned) for right wrist injury residuals is remanded. Propriety of the assignment of a separate rating for right wrist peripheral neuropathy, evaluated as 10 percent disabling as of June 5, 2014, and 20 percent disabling as of June 23, 2020, is remanded. Propriety of the assignment of a separate rating for right wrist scar, evaluated as noncompensably disabling as of March 19, 2014, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to September 1980, and from August 1986 to August 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2007 by a Department of Veterans Affairs (VA) Regional Office. In March 2011, the Veteran testified at a Board hearing before a Veterans Law Judge. In February 2012, the Board remanded the issues then on appeal for additional development. In February 2015, the Veteran requested a new Board hearing in light of the fact the Veterans Law Judge who held the March 2011 hearing had retired. Accordingly, in April 2015, the Board remanded the appeal so another hearing could be scheduled. In April 2016, the Veteran testified at a second Board hearing before the undersigned Veterans Law Judge. Both hearing transcripts are associated with the record. In February 2018, the Board remanded the Veteran’s claims for increased ratings for his back, right knee, and right wrist disabilities, propriety of the assignment of a separate rating for radiculopathy of the left lower extremity, service connection for radiculopathy of the right lower extremity and a bilateral foot disorder, and entitlement to a TDIU for additional development. While on remand, a July 2019 rating decision awarded service connection for bilateral lower extremity cold injuries with sensory neuropathy; radiculopathy of the right lower extremity, evaluated as 40 percent disabling as of June 4, 2019; and increased the Veteran’s separate rating for radiculopathy of the left lower extremity to 40 percent, effective June 4, 2019. While the propriety of the assignment of the separate rating for radiculopathy of the right and left lower extremities are part and parcel of the Veteran’s claim for an increased rating for his back disability and remain on appeal, the claim for service connection for a bilateral foot disorder has been granted in full is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Furthermore, a July 2020 rating decision awarded a temporary total rating for the Veteran’s right wrist injury residuals based on surgical or other treatment necessitating convalescence as of March 19, 2014, and a 10 percent rating was resumed as of June 1, 2014, and awarded separate ratings for right wrist neuropathy, evaluated as 10 percent disabling as of June 5, 2014, and 20 percent disabling as of June 23, 2020, and right wrist scar, evaluated as noncompensably disabling as of March 19, 2014). While the Veteran has not entered a notice of disagreement as to the propriety of such separately assigned ratings, the Board finds that such issues are part and parcel of his claim for an increased rating for his right wrist disability and has assumed jurisdiction over them. The case now returns for further appellate review. 1. Entitlement to a rating in excess of 40 percent for lumbosacral strain with degenerative joint and disc disease. 2. Propriety of the assignment of a separate rating for left lower extremity radiculopathy, evaluated as 10 percent disabling as of December 18, 2014, and 40 percent disabling as of June 4, 2019. 3. Propriety of the assignment of a separate rating for right lower extremity radiculopathy, evaluated as 40 percent disabling as of June 4, 2019. 4. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee with degenerative joint disease. 5. Entitlement to a rating in excess of 10 percent (exclusive of the time period where a total rating has been assigned) for right wrist injury residuals. 6. Propriety of the assignment of a separate rating for right wrist peripheral neuropathy, evaluated as 10 percent disabling as of June 5, 2014, and 20 percent disabling as of June 23, 2020. 7. Propriety of the assignment of a separate rating for right wrist scar, evaluated as noncompensably disabling as of March 19, 2014. 8. Entitlement to a TDIU. The aforementioned claims were most recently adjudicated by the AOJ in a supplemental statement of the case issued in July 2020. In November 2020, additional VA treatment records relevant to the instant claims were associated with the file. Consequently, later that month, the Board solicited a waiver of AOJ consideration of such newly received evidence from the Veteran and his representative. In this regard, the letter informed them that, if they did not reply within 45 days, the Board would assume that they did not wish to waive AOJ consideration of the additional evidence and would remand the case for AOJ review. To date, no response has been received. Therefore, a remand is necessary in order to allow the AOJ to consider the newly received evidence in the first instance. 38 C.F.R. § 19.31(b)(1). Furthermore, since such time, additional VA examinations conducted in December 2020 that addressed the nature and severity of the Veteran’s nerve disabilities were associated with the record in January 2021. Thus, the AOJ should also consider such newly received evidence in the readjudication of the Veteran’s claims. Id. Finally, the Board observes that, in November 2020, the Veteran argued that additional VA examinations for his back and right knee disability were necessary as the most recent examinations, which had been conducted in June 2019, were over a year old. However, the mere passage of time is not a basis for requiring new examinations. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Further, as there is no indication that such disabilities have increased in severity since the June 2019 VA examinations, the Board finds that new examinations are not necessary at the present time. The matters are REMANDED for the following action: Readjudicate the Veteran’s claims based on the entirety of the evidence, to specifically include all evidence associated with the record since the issuance of the July 2020 supplemental statement of the case, which includes VA treatment records received in November 2020 and VA examinations received in January 2021. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.