Citation Nr: 22014679
Decision Date: 03/14/22	Archive Date: 03/14/22

DOCKET NO. 09-48 664
DATE: March 14, 2022

REMANDED

Entitlement to a higher initial rating in excess of 10 percent for left lower extremity (LLE) sciatic nerve paralysis from December 7, 2007, to October 24, 2011, is remanded.

Entitlement to a higher initial rating in excess of 20 percent for LLE sciatic nerve paralysis from October 24, 2011, to April 6, 2015, is remanded.

Entitlement to a higher initial rating in excess of 40 percent for LLE sciatic nerve paralysis from April 6, 2015, is remanded.

Entitlement to a higher initial rating in excess of 10 percent for right lower extremity (RLE) sciatic nerve paralysis from December 7, 2007, to October 24, 2011, is remanded.

Entitlement to a higher initial rating in excess of 20 percent for RLE from October 24, 2011, is remanded.

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

REASONS FOR REMAND

The Veteran served on active from August 1974 to October 1978. 

This appeal comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified before a former Veterans Law Judge (VLJ), and a transcript of that hearing is of record.

The issue of an entitlement to a TDIU was raised during the Board hearing, as part and parcel of the Veteran's increased rating issues on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). 

1. Entitlement to a higher initial rating in excess of 10 percent for left lower extremity (LLE) sciatic nerve paralysis from December 7, 2007, to October 24, 2011, is remanded.

2. Entitlement to a higher initial rating in excess of 20 percent for LLE sciatic nerve paralysis from October 24, 2011, to April 6, 2015, is remanded.

3. Entitlement to a higher initial rating in excess of 40 percent for LLE sciatic nerve paralysis from April 6, 2015, is remanded.

4. Entitlement to a higher initial rating in excess of 10 percent for right lower extremity (RLE) sciatic nerve paralysis from December 7, 2007, to October 24, 2011, is remanded.

5. Entitlement to a higher initial rating in excess of 20 percent for RLE from October 24, 2011, is remanded.

Since the issuance of the September 2021 supplemental statement of the case (SSOC), new evidence has been added to the file that is relevant to the Veteran's remaining claims. In a February 2022 letter, the Veteran was notified that additional evidence had been received by the Board that had not previously been considered by the Agency of Original Jurisdiction (AOJ). The letter provided him with 45 days to indicate whether he wished to have the AOJ initially review the evidence or if he waived his right to have such initial AOJ review. The letter informed him that if a response was not received, the Board would remand the case to the AOJ for its initial review of the new evidence. The Veteran's response that he wants his case remanded back to the AOJ for review of this new evidence was received as of February 2022. Thus, a remand is required for AOJ initial review of relevant new evidence and issuance of an SSOC for the Veteran's increased rating claims on appeal.

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

The claim for TDIU is inextricably intertwined with the increased rating issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the TDIU claim must be remanded.

The matters are REMANDED for the following action:

1. Review the record to include the evidence added since the last SSOC and readjudicate the claims.

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Lee, Catherine

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.