Citation Nr: 22017553
Decision Date: 03/25/22	Archive Date: 03/25/22

DOCKET NO. 19-33 935
DATE: March 25, 2022

REMANDED

Entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period from January 30, 2018 to October 20, 2020 is remanded.

Entitlement to a rating in excess of 40 percent for a lumbar spine disability for the period since October 20, 2020 is remanded. 

Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active service in the United States Marine Corps from September 1978 to July 2000. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

In April 2020, the Board in part, denied the claim for entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period from January 30, 2018.

The Veteran appealed to the United States Court of Appeals for Veterans Claims ("the Court"). In September 2018, the Court issued an order that vacated the Board decision with regard to the denial of entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period from January 30, 2018 and remanded the claim for compliance with a Joint Motion for Partial Remand (JMPR).

In a February 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 40 percent disability rating for PTSD with alcohol use disorder, effective October 20, 2020. The Board notes that the increase from 20 to 40 percent for the lumbar spine disability did not constitute a full grant of the benefits sought.  Accordingly, the issue of entitlement to a rating in excess of 40 percent for a lumbar spine disability for the period since October 20, 2020 remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

The Board finds that more development is necessary prior to final adjudication of the claims on appeal.

After issuance of the Statement of the Case (SOC) in January 2019, additional VA treatment records including VA examination reports pertaining to the above claims have been added to the record. On January 21, 2022, VA sent correspondence to the Veteran asking if he wished to waive initial agency of original jurisdiction (AOJ) review of this evidence.  However, the letter indicated that if he did not respond within 45 days, it will be assumed that he does not wish to have the Board decide his appeal at this time and the Board will thus remand the appeal for AOJ for review.  As of this date, the Board has not received a response.

Therefore, given the expiration of the 45-day requirement to submit a waiver without a response from the Veteran, the Board is required to remand this matter.  On remand, the agency of original jurisdiction should issue a new supplemental statement of the case (SSOC) that considers the evidence received since the September 2019 SOC.

The matters are REMANDED for the following action:

Readjudicate the issues on appeal. If they remain denied, issue an SSOC pertaining to the Veteran's claims. The matters should then be returned to the Board for appropriate appellate review, if otherwise in order.

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	James A. DeFrank, 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.