Citation Nr: 21040795 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-14 751 DATE: July 7, 2021 REMANDED Entitlement to an increased rating higher than 20 percent for post-operative residuals of L5-S1 microdiscectomy with chronic pain syndrome prior to June 22, 2015, and higher than 40 percent thereafter, is remanded. Entitlement to an initial disability rating higher than 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2005 to May 2012. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2014 and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board, in part, denied the Veteran's claims for the above-listed issues. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a Memorandum Decision dated July 2, 2020, the Court vacated the Board's decision and remanded the case. The October 2018 Board decision also denied increased rating claims for radiculopathy of the right lower extremity, migraine headaches, and posttraumatic stress disorder. The Veteran did not challenge these portions of the Board's decision and the issues were dismissed by the Court. On appeal before the Court, the Veteran argued that after his appeal was certified to the Board, new and relevant VA treatment records were received. He argued that VA violated his due process rights under 38 C.F.R. § 19.37(b) and 38 C.F.R. § 20.1304(c) by adjudicating his claims without issuing an SSOC after the records were associated with his file. The Court's Memorandum Decision observed that the Board relied on the evidence associated with the Veteran's claims file after the case was certified, and that its decision did not address whether §§ 20.1304(c) or 19.37 required referral of this evidence. As a result, the Court found that the Board provided an inadequate statement of reasons or bases and a remand was necessary for it to refer the evidence to the RO or explain why it does not have a bearing on the appellate issues. As provided below, the issues are being remanded for the RO to consider this evidence. Regarding entitlement to TDIU, the Court determined that the Board's reasons or bases were inadequate where it failed to explain how the evidence demonstrating that the Veteran was "attending school and doing well," "finished his coursework," and "received a job offer" relates to his ability to secure and follow substantially gainful employment. The Board observes that the Veteran has argued that his lumbar spine and left leg radiculopathy disabilities were the primary reasons for his unemployability. See April 2020 reply brief of appellant. As such, the issue of entitlement to TDIU is intertwined and will be remanded to the AOJ for review and preparation of an SSOC. The matters are REMANDED for the following action: 1. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issues on appeal. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. The Board is particularly interested any outstanding records of VA medical treatment (generated after the last treatment notes of record). The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder. 2. The AOJ should conduct any other development needed, to include scheduling any VA examinations and/or obtaining medical opinions. (Continued on the next page) 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, readjudicate the Veteran's pending claims in light of any additional evidence added to the record since the March 2016 SOC. If any benefit sought on appeal remains denied, the Veteran and his agent should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote, 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.