Citation Nr: 22013618 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-58 598 DATE: March 10, 2022 REMANDED Entitlement to a rating in excess of 20 percent for lumbar strain is remanded. Entitlement to a TDIU total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1978 to June 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In September 2021, the Veteran testified before the undersigned Veterans Law Judge. The undersigned indicated during the hearing that the issue of entitlement to service connection for a skin disorder was potentially within its jurisdiction, and that if there was a jurisdictional defect in addressing this claim the Veteran would be so advised. Here, the Veteran perfected an appeal of entitlement to service connection for a skin disorder following a September 1998 rating decision. Following receipt of additional evidence, a Supplemental Statement of the Case (SSOC) was issued in March 2002 that continued to deny the claim. Included with that SSOC was an Appeals Status Election Form. The Veteran completed and returned that form, indicating that the SSOC satisfied his appeal with regard to entitlement to service connection for a skin disorder and that he did not wish to further pursue that matter. See March 2002 Appeals Status Election. The veteran's statement meets the requirements of 38 C.F.R. 20.204 (2002) and thus constitutes a valid withdrawal of this issue. Moreover, although 38 C.F.R. § 20.104(c) provides that notice and the opportunity to present evidence and argument, including the opportunity for a hearing, must be provided to all parties when the Board raises a question as to a "potential" jurisdictional defect, here there is no question as to a "potential" jurisdictional defect, but rather an actual and evident defect on the face of the record. Therefore, because the jurisdictional defect is not potential, but actual and evident, notice and the opportunity to present evidence and argument, including the opportunity for a hearing, are not required. The Veteran specifically asserts that his back disability and associated neurological impairment functionally impact his ability to work. Thus, the issue of entitlement to a TDIU is raised by the record and is part and parcel of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a rating in excess of 20 percent for lumbar strain is remanded. 2. Entitlement to a TDIU is remanded. Review of the claims file is suggestive that the record remains incomplete. Specifically, in a February 2022 VA treatment record, the Veteran reported treatment by a private orthopedist and neurosurgeon. These relevant records are not in the claims file and should be secured on remand. As the Veteran's entitlement to a TDIU is inextricably intertwined with the increased rating issue remanded herein, action on this matter is deferred. Additionally, a VA Form 21-4192 should be secured in relation to the Veteran's employment with the United States Postal Service and Brower County Transit. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records, to specifically include all records of treatment of the Veteran's low back disability by a private orthopedist and neurosurgeon as noted in his February 2022 VA outpatient records. 3. Attempt to obtain employment information from the United States Postal Service and Broward County Transit detailing the dates of the Veteran's employment and the reason(s) for termination of employment. Send each employer a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.