Citation Nr: 21042536 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 12-06 700 DATE: July 13, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for lumbosacral strain with degenerative disc disease and scoliosis is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1988 to December 1997. She also had a period of active duty for training from January 1988 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this matter for additional development in October 2014. In a June 2017 decision, the Board denied entitlement to an increased rating greater than 20 percent for the Veteran's service-connected lumbar spine disability. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In January 2018, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR), which vacated the Board's June 2017 denial of the claim of entitlement to an increased rating for the Veteran's service-connected lumbar spine disability and remanded the claim to the Board for additional consideration. In May 2018 and August 2019, the Board again remanded this matter for additional development. In October 2020, the Board remanded this appeal so that the RO could readjudicate the appeal taking into consideration the additional evidence. The Board finds that the RO substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2020, the Veteran was inadvertently sent a letter asking her if she wanted a second hearing. In November 2020, the Board transferred the Veteran's appeal to the hearing branch to confirm if the Veteran desired a hearing. In December 2020, the Veteran was scheduled for a hearing. In January 2021, the Veteran withdrew her request for a hearing, which was confirmed by her representative. Entitlement to an evaluation in excess of 20 percent for lumbosacral strain with degenerative disc disease and scoliosis is remanded. Appellants are entitled to initial review by the Agency of Original Jurisdiction (AOJ) of evidence added to the file by the Department of Veterans Affairs (VA), and waiver of such review may not be presumed. See 38 U.S.C.§ 7104(a); 38 C.F.R. § 20.1304. Here, additional evidence has been added to the file by VA since the Statement of the Case (SOC) was issued in October 2020 and the matter has not been readjudicated by the AOJ in a Supplemental Statement of the Case (SSOC) since that time. The Veteran was notified in a May 2021 Correspondence that the Board received VA treatment/examination records from a government facility that was not previously considered by the AOJ and requested a waiver. The Veteran was given 45 days to respond but failed to respond. Therefore, the appeal must be remanded so that an SSOC may be issued that considers all evidence of record. 38 C.F.R. § 20.1304(c). The matter is REMANDED for the following action: Readjudicate the issue on appeal taking into consideration all newly acquired evidence since the October 2020 supplemental statement of the case. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and her representative, and return the appeal to the Board for appellate review, after the Veteran and her representative have had an adequate opportunity to respond. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.