Citation Nr: 21023711 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-07 073 DATE: April 21, 2021 REMANDED Entitlement to a disability rating in excess of 60 percent for lumbar intervertebral disc syndrome (IVDS), status post decompression, laminectomy and fusion with bilateral S-1 radiculopathy, prior to February 2, 2018 is remanded. Entitlement to a disability rating in excess of 20 percent for lumbar IVDS, status post decompression, laminectomy and fusion from February 2, 2018, thereafter, is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy, right lower extremity, sciatic nerve is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy, left lower extremity, sciatic nerve is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy, right lower extremity, anterior crural nerve is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy, left lower extremity, anterior crural nerve is remanded. Entitlement to a compensable disability rating for radiculopathy, right lower extremity, external cutaneous nerve is remanded. Entitlement to a compensable disability rating for radiculopathy, left lower extremity, external cutaneous nerve is remanded. Entitlement to a compensable disability rating for radiculopathy, right lower extremity, ilio-inguinal nerve is remanded. Entitlement to a compensable disability rating for radiculopathy, left lower extremity, ilio-inguinal nerve is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1984 to March 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision that denied entitlement to a disability rating in excess of 60 percent for lumbar IVDS, status post decompression, laminectomy and fusion with bilateral S-1 radiculopathy under DC 5243 pertaining to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In July 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. The Veteran’s claim was remanded by the Board in October 2019 for further development. Subsequent to the Board’s remand, a September 2020 rating decision discontinued the Veteran’s 60 percent disability rating for lumbar IVDS, status post decompression, laminectomy and fusion under DC 5243 and instituted a 20 percent disability rating, effective February 2, 2018, under DC 5242 under the General Rating Formula for Diseases and Injuries of the Spine, along with separate disability ratings for the above lower extremity neurological disabilities. The Board notes that a disability of the spine may be evaluated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Here, as of February 2, 2018, the RO determined that it was more beneficial to rate the Veteran’s low back disability under the General Rating Formula with separate ratings assigned for neurologic abnormalities of the lower extremities, for a combined disability rating of 80 percent. Unfortunately, the Veteran’s claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims, so she is afforded every possible consideration. 1. Entitlement to a disability rating in excess of 60 percent for lumbar IVDS, status post decompression, laminectomy and fusion with bilateral S-1 radiculopathy, prior to February 2, 2018 is remanded. 2. Entitlement to a disability rating in excess of 20 percent for lumbar IVDS, status post decompression, laminectomy and fusion from February 2, 2018, thereafter, is remanded. 3. Entitlement to a disability rating in excess of 20 percent for radiculopathy, right lower extremity, sciatic nerve is remanded. 4. Entitlement to a disability rating in excess of 20 percent for radiculopathy, left lower extremity, sciatic nerve is remanded. 5. Entitlement to a disability rating in excess of 20 percent for radiculopathy, right lower extremity, anterior crural nerve is remanded. 6. Entitlement to a disability rating in excess of 20 percent for radiculopathy, left lower extremity, anterior crural nerve is remanded. 7. Entitlement to a compensable disability rating for radiculopathy, right lower extremity, external cutaneous nerve is remanded. 8. Entitlement to a compensable disability rating for radiculopathy, left lower extremity, external cutaneous nerve is remanded. 9. Entitlement to a compensable disability rating for radiculopathy, right lower extremity, ilio-inguinal nerve is remanded. 10. Entitlement to a compensable disability rating for radiculopathy, left lower extremity, ilio-inguinal nerve is remanded. A review of the evidence of record shows that since the most recent September 2020 supplement statement of the case (SSOC) additional, relevant evidence has been associated with the Veteran’s claims file. Specifically, VA obtained the Veteran’s private treatment records from Kaiser Permanente on October 21, 2020. As such, the Board finds that a SSOC must be furnished to the claimant when additional pertinent evidence is received after the most recent SSOC was issued. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. The Board notes that rating decisions dated October 31, 2020 and November 3, 2020 address the Veteran’s claims for increased ratings, but do not demonstrate that her private treatment records from Kaiser Permanente were considered. In particular, the rating decision dated November 3, 2020 states that VA Forms 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs and 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs, were provided to the Veteran, but that completed forms had not been received. However, the Veteran’s claims file contains a VA Forms 21-4142 and 21-4142a that were received by VA on October 21, 2020 for Kaiser Permanente and Dr. D.W.S. of the Neurology Department at Kaiser Permanente. The Board recognizes that, although the Veteran’s substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because this additional evidence was obtained by VA and was not submitted by the Veteran. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted by the claimant or his representative with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests Agency of Original Jurisdiction (AOJ) consideration). As noted above, this provision only applies to evidence submitted by the Veteran. Therefore, the Veteran’s claims for increased ratings must be remanded to allow for AOJ consideration of the newly obtained evidence. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for all physicians and facilities relating to treatment for the Veteran’s lumbar IVDS, status post decompression, laminectomy and fusion and associated radiculopathy, including Kaiser Permanente. Make two requests for the authorized records from all physicians and facilities identified by the Veteran, unless it is clear after the first request that a second request would be futile. 3. After completing any other development that may be indicated, readjudicate the claims on appeal with consideration of the Veteran’s records from Kaiser Permanente received on November 2, 2020. If the benefits sought are not granted, the Veteran and her representative must be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.