Citation Nr: 21042023
Decision Date: 07/11/21	Archive Date: 07/11/21

DOCKET NO. 16-44 786
DATE: July 11, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for a service-connected lumbar strain is remanded.

Entitlement to an initial rating in excess of 10 percent for service-connected lumbar radiculopathy affecting the right femoral nerve is remanded.

Entitlement to an initial rating in excess of 10 percent for service-connected lumbar radiculopathy affecting the left femoral nerve is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1980 to February 1983. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2015 by a Regional Office (RO) of the Department of Veterans Affairs (VA), which adjudicated the Veteran's lumbar strain increased rating claim.  Thereafter, the RO granted separate ratings for the lumbar radiculopathies affecting the lower extremities, as reflected in a September 2018 rating decision.  While the Veteran did not enter a notice of disagreement with regard to the propriety of the assigned effective date or rating for the award of the separate rating for his radiculopathy of the left lower extremity, the Board notes that such issues are part and parcel of her claim for entitlement to an increased rating for her lumbar spine disability.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).  

In September 2019, the Board remanded the Veteran's lumbar strain increased rating claim for development.  In February 2020, the Veteran filed a claim seeking a TDIU, which is still pending before the RO.  However, as the Veteran asserted that his unemployability is due, in part, to his service-connected lumbar strain when filing his TDIU application, the Board must assume jurisdiction of this claim as part and parcel of the lumbar strain increased rating claim on appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

1. Entitlement to a rating in excess of 10 percent for a service-connected lumbar strain is remanded.

2. Entitlement to an initial rating in excess of 10 percent for service-connected lumbar radiculopathy affecting the right femoral nerve is remanded.

3. Entitlement to an initial rating in excess of 10 percent for service-connected lumbar radiculopathy affecting the left femoral nerve is remanded.

4. Entitlement to a TDIU is remanded.

As referenced above, the Board remanded the Veteran's lumbar strain increased rating claim for development in September 2019, and after undertaking the requested development, the RO readjudicated this claim, as reflected in an August 2020 supplemental statement of the case.  However, since this last adjudicative action, numerous medical records have been associated with the claims file, include a VA spinal examination.  As such, in a May 2021 statement, the Veteran's representative declined to waive initial RO review of this newly associated medical evidence and has requested that the Board remand this case to allow such initial RO consideration.

Accordingly, the matters are REMANDED for the following action:

After a review and consideration of all medical evidence associated with the record since the issuance of the August 2020 supplemental statement of the case, issue a new supplemental statement of the case readjudicating the Veteran's claims seeking increased ratings for his lumbar strain, lower extremity radiculopathies and his claim seeking a TDIU.

 

J. Abrams

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Northcutt, 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.