Citation Nr: 21029764
Decision Date: 05/17/21	Archive Date: 05/17/21

DOCKET NO. 16-05 251
DATE: May 17, 2021

REMANDED

Entitlement to an increased rating greater than 20 percent for the service-connected lumbosacral spine strain, degenerative disc disease, and disc protrusion 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 had active service from January 1985 to November 1990. In a September 2018 decision, the Board of Veterans' Appeals (Board) reinstated the Veteran's 40 percent rating for his service-connected lumbar spine disability and, in so doing, noted that the reduction from 40 percent to 10 percent was not carried out in accordance with applicable procedures and was void ab initio. The increased rating claim was then remanded for the Veteran to undergo another VA examination. That examination was conducted in August 2019. 

Based on the results of the August 2019 VA examination, the agency of original jurisdiction (AOJ) proposed another decrease of the Veteran's lumbar spine rating in a July 2020 rating decision. Then in August 2020, the Veteran notified VA that he would submit additional evidence regarding his lumbar spine disability, which suggests that there is outstanding medical evidence that may support his claim for an increased rating for this disability. The record indicates that private physicians have treated the Veteran for his lumbar spine. There is no indication that the additional evidence the Veteran mentioned has already been obtained. 

The Veteran's lumbar spine rating reduction was effectuated in a December 2020 rating decision, and he has not yet appealed that decision.  Hence, the most recent rating reduction issue is not currently on appeal before the Board. As the additional evidence that he mentioned with regard to his lumbar spine disability is, however, relevant to his increased rating claim on appeal, a remand is necessary for the AOJ to obtain any such outstanding evidence. The Board regrets this additional delay, but finds it necessary to remand this case again for further development. 

In addition, the issue of entitlement to a TDIU is inextricably intertwined with the adjudication of the increased rating claim. Smith v. Gober, 236 F.3d 1370 (Fed. Cir. 2001); Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, that issue must also be returned to the AOJ for further consideration. Accordingly, these matters are REMANDED for the following action: 

1. After obtaining necessary authorizations from the Veteran, obtain any outstanding VA and non-VA medical records. See August 2020 Statement in which the Veteran referenced additional evidence as to his lumbar spine.

2. Then, if necessary, ask the Veteran to complete a VA Form 21-4192, Request for Employment Information Form, for forwarding to his last employer. 

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Trowers, 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.