Citation Nr: 21025470
Decision Date: 04/28/21	Archive Date: 04/28/21

DOCKET NO. 15-27 619
DATE: April 28, 2021

REMANDED

Entitlement to an initial disability rating in excess of 40 percent for right lower extremity radiculopathy is remanded.

Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the lumbosacral spine is remanded.

Entitlement to total disability based on individual unemployability (TDIU) prior to December 25, 2013, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from July 1973 to February 1977.  

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

Previously, the Board remanded this matter for additional development in a June 2018 decision.  After undertaking this additional development, the RO issued a July 2020 supplemental statement of the case (SSOC).  Thereafter, this matter returned to the Board.  Since the July 2020 SSOC was issued, however, new evidence has been added to his claims file, including VA treatment records generated after July 2020.  In correspondence dated March 3, 2021, the Board informed the Veteran and his representative that new evidence had been associated with the claims file and asked whether he wanted to waive his right to have the RO review the evidence in the first instance.  The letter indicated that he had 45 days to respond to the Board’s letter, but that if the Board did not receive a response within 45 days, it would assume he wished to have his appeal remanded for the RO to initially review the new evidence.  Although the 45-day period to respond to the Board’s correspondence has elapsed, the record does not contain a response from either the Veteran or his representative.  As such, this matter must be remanded to the RO to consider the claims in light of the additional evidence in the first instance and for the issuance of an SSOC reflecting such consideration.  

Additionally, the Board notes that during the pendency of this appeal, the RO granted entitlement to TDIU, effective December 25, 2013, in a July 2020 rating decision.  Because this grant does not encompass the entire disability rating period on appeal, which began in 2008, the issue of entitlement to TDIU prior to this date remains pending in conjunction with his increased rating claims.  See Harper v. Wilkie, 30 Vet. App. 356 (2018) (once entitlement to TDIU is put in issue as part of a claim for a higher initial rating or increased rating and the RO grants TDIU that does not span the entire period on appeal, the issue of entitlement to TDIU for an earlier period is still on appeal).  Because the Veteran’s claims for increased initial disability ratings are being remanded, adjudication of the TDIU claim must also be deferred.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  

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Accordingly, the matters are REMANDED for the following action:

Readjudicate the Veteran’s claims.  All evidence of record, including the evidence added to the claims file after the issuance of the July 2020 SSOC, must be considered.  If the claim is not granted to his satisfaction, send him and his representative an SSOC discussing this additional evidence and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. Rademacher, 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.