Citation Nr: 23018970 Decision Date: 03/28/23 Archive Date: 03/28/23 DOCKET NO. 97-29 723 DATE: March 28, 2023 ORDER From April 18, 1996, entitlement to a separate 60 percent rating for post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop (right foot drop) is granted. Entitlement to an allowance for an automobile or other conveyance, and adaptive equipment, or for adaptive equipment only is granted. From August 1, 2007, entitlement to a total disability based upon individual unemployability (TDIU) is granted. REMANDED From April 18, 1996, entitlement to a rating greater than 60 percent for post-operative residuals of a herniated nucleus pulposus of the lumbar spine is remanded. From April 18, 1996, entitlement to a rating greater than 60 percent for right foot drop is remanded. Entitlement to an effective date earlier than April 18, 1996 for the grant of a separate 60 percent rating for right foot drop is remanded. REFERRED On April 18, 1996, the Veteran raised the issue of clear and unmistakable error (CUE) in the Agency of Original Jurisdiction's (AOJ) January 1984 rating decision. Specifically, the Veteran contends the AOJ committed CUE when it combined the ratings of the two disabilities it had service connected in January 1976 ("PO residuals HNP, lumbar spine" and "Weakness, right foot, secondary to laminectomy") into a single rating under Diagnostic Code 5293 ("PO residuals HNP, lumbar spine with right foot drop"). The Board refers this issue to the AOJ for adjudication. FINDINGS OF FACT 1. From April 18, 1996, the Veteran, at a minimum, has had a level of impairment that is consistent with severe incomplete paralysis of the sciatic nerve of the right lower extremity. 2. The Veteran's service-connected post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop results in the loss of use of his right foot. 3. The Veteran was unable to obtain and maintain substantially gainful employment as of August 1, 2007, due to his combined service-connected disabilities. CONCLUSIONS OF LAW 1. From April 18, 1996, the criteria for a separate 60 percent rating for foot drop of the right foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for establishing eligibility for financial assistance for an automobile or other conveyance have been met. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808. 3. The criteria for an effective date of August 1, 2007 for the grant of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1952 to September 1955 and from December 1958 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of March 1997 and June 2002 of an AOJ of the U.S. Department of Veterans Affairs. Procedural History The procedural history of this appeal is complex, so the Board will summarize it. In May 1998, the Board, as relevant here, denied a rating greater than 60 percent for post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In September 1998, the CAVC granted a Joint Motion for Partial Remand (JMPR). Pursuant to the JMPR, the CAVC vacated the Board's decision, and it remanded the matter to the Board for further proceedings consistent with the JMPR. In relevant part, the JMPR states: The BVA discussion on page 8 of its decision reflects its failure to consider the Appellant's entitlement to a separate disability rating for foot drop under the Court's decision in Bierman; see also Esteban v. Brown, 6 Vet. App. 259 (1994). In April 1999, the Board remanded the issue of a rating greater than 60 percent for post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop. In so doing, it noted: The Veteran contends that separate evaluations are warranted for his paralysis of the sciatic nerve, his loss of use of the right foot, and his limitation of motion in the spinal lumbar region, and that he should receive an evaluation for his right foot drop in addition to the special monthly compensation he currently receives for loss of use of the right foot. On June 10, 2002, the AOJ took three actions. First, in a rating decision, it granted "a separate 60 percent evaluation for right foot drop," effective November 4, 1996 which the AOJ noted was "the date of claim for an increased evaluation." The Board, herein, refers to this as the Veteran's right foot drop disability. Second, as part of the 60 percent rating analysis, it stated: For the record, the Veteran has been authorized an automobile allowance in the past based on the loss of use of foot and rating for that purpose is not necessary at this time. Third, in a Supplemental Statement of the Case, it denied a rating greater than 60 percent for "postoperative residuals of herniated nucleus pulposus of the lumbar spine." These actions decoupled the combined rating of two disabilities under then-Diagnostic Code 5293. On June 13, 2002, the AOJ received correspondence from the Veteran which states: I agree with the continued entitlement to a disability evaluation of 60-percent for postoperative residuals of herniated nucleus pulposus of the lumbar spine and a separate 60 percent evaluation for right foot drop. I disagree with the effective date of 4 November 1996 if for no other reason than my claim was filed prior to October 1995. In my letter of 31 October 1995, I stated that I had concluded that the Veterans Administration had grossly erred in the evaluation of my condition. It had combined two awards in their letter of 26 January 1976 into one award in their letter of 9 February 1984. Your letter of 10 June 2002 would lend credence to my conclusion. It is therefore my opinion that the effective date is 9 February 1984. The medical report states, "The examiner opined that the veteran has mechanical type low back symptoms and probably has some arthritis in his low back rays found mild to moderate degenerative changes consistent with osteoarthritis throughout the lumbar spine with moderately severe osteoarthritic changes at L4/5 and L5/S1. Yet this condition was not addressed under diagnostic code 5003 and in my opinion warrants an additional entitlement to disability evaluation of 10 percent. Lastly for the record, if this Veteran was ever authorized an automobile allowance in the past based on the loss of use of foot and rating for that purpose is not necessary at this time then this Veteran was never notified of that fact and rating for that purpose is necessary at this time. On January 9, 2004, the Veteran emailed the VA Regional Office in Indianapolis, Indiana. He, in relevant part, stated: I AM attempting to determine me the status/location of rating appeal begun in 1995. It was certified to the Board of Veterans Appeals on 12/29/97 and appealed to the United States Court of Veterans Appeals on 08/19/98. The appeal was subsequently remanded back to the Board of Veterans Appeals on 12/15/98. Subsequent to that it was remanded to the Indianapolis Regional Office on 04/09/99. An additional rating was approved on 06/10/02 with which I agreed but not the effective date. On 06/11/02, I appealed the effective date of 11/04/96 and that the condition of osteoarthritis of the lumbar spine was not addressed. I asserted that the effective date should be 02/09/84 and that I should receive rating of 10% for the osteoarthritis. Since I initiated my appeal on 06/11/02, I have heard nothing further concerning its status. On January 12, 2004, the Indianapolis Regional Office responded: Records indicate notice of disagreement was received October 16, 2003. However, the record indicates different issue than mentioned in your email. This email appears to be a possible statement in support of claim. VA cannot accept statements such as these via email. You may want to write letter explaining your differences. Please address it attention the Appeals team. Your email has been forwarded to the appeals team, but you will still need to write letter as an original signature is required. On February 2, 2023, the Veteran's representative emailed the Indianapolis Regional Office. It stated: I am contacting you on behalf of our client [the Veteran]. Upon review of VBMS on January 20, 2023, our office discovered that the June 10, 2002 Supplemental Statement of the Case (SSOC) for the issues of increased rating and earlier effective date for right foot drop, was never certified to the Board of Veterans' Appeals. At this time, please re-activate the June 10, 2002 SSOC in VBMS and ensure that it gets certified. Thank you for your prompt attention to this matter. Based on the above, the Board has determined that the following issues are on appeal: 1) Entitlement to a rating greater than 60 percent for post-operative residuals of a herniated nucleus pulposus of the lumbar spine 2) Entitlement to a separate rating for right foot drop prior to November 4, 1996 3) Entitlement to a rating greater than 60 percent for right foot drop 4) Entitlement to financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment 5) Entitlement to an effective date earlier than November 4, 1996 for the grant of a separate 60 percent rating for right foot drop Beyond these, the Board notes that the Veteran raised the issue of entitlement to a TDIU in December 2020. In March 2022, the Board, in Docket No. 220131-215294, granted a TDIU effective April 24, 2019. The Board did not discuss Docket 97-29 723 in its decision. Given the time period that Docket 97-29 723 covers and that TDIU encompasses part of this period, the Board finds entitlement to a TDIU prior to April 24, 2019 is also on appeal. Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). Issue 1: Entitlement to a separate rating for post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop prior to November 4, 1996 Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The law allows for an effective date up to one year prior to the date of receipt of a claim, sometimes informally called "the one-year lookback period." 38 C.F.R. § 3.400(o)(2). Specifically, if an increase in disability level was "factually ascertainable" within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred. Merits In September 1995, the AOJ received a VA Form 21-4138, "Statement in Support of Claim" from the Veteran. It stated: I wish to be rated for a service-connected condition. I was treated for Genital Herpes on 2 Nov 71, with follow-up treatment on 24 & 26 Nov, and 7 Dec 71. I was again treated on 12 Oct 74. I have not sought any treatment from the DVA facilities. On October 18, 1995, the AOJ, in response to the VA Form 21-4138, asked the Veteran to submit a VA Form 21-4142. On April 4, 1996, the AOJ issued a rating decision. In it, the AOJ granted service connection for 1) folliculitis of the occipital region of the scalp, and 2) genital herpes. On April 15, 1996, the AOJ notified the Veteran of its April 4, 1996 rating decision. On April 18, 1996, the Veteran's then-representative submitted a statement dated October 31, 1995 from the Veteran. This statement concerned both the AOJ's October 18, 1995 letter and, as the Veteran's framed it, the "related matter" of his post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop. The statement received on April 18, 1996 may be viewed in two ways: 1) as a CUE motion with the AOJ's January 1984 rating decision, and 2) as an increased rating claim for the post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop. The AOJ construed the statement in the latter manner, which is what set in motion the appeal currently before the Board. The Board has also construed it in the former manner, which is why it has referred the issue to the AOJ, as explained above. The Board has recounted the events of September 1995 to April 1996 because it, as a threshold matter, needs to define when the AOJ received the Veteran's increased rating claim. The Board recognizes that the Veteran, in his statement received on June 13, 2002, contends that the AOJ received his claim "prior to October 1995." The Board disagrees as the claim the AOJ received in September 1995 concerned service connection for genital herpes. Based on the above, the Board finds the AOJ received the increased rating claim on April 18, 1996. Having established this, the Board notes the Veteran did not have a separate rating for right foot drop from April 18, 1996 to November 3, 1996. That is, the AOJ selected November 4, 1996 as the date on which it decoupled the Veteran's rating for post-operative residuals of a herniated nucleus pulposus of the lumbar spine from his rating for right foot drop. November 4, 1996 was the date the Veteran testified before a Decision Review Officer regarding the AOJ's September 1996 proposal to sever compensation for special monthly compensation for loss of use of his right foot. It was not the date of claim for a separate rating for right foot drop, i.e., April 18, 1996. As such, the Board finds the AOJ should have used April 18, 1996, not November 4, 1996, as the date of claim. If it had, it would have decoupled the ratings on that date. Having established that the Veteran was entitled to a separate rating for foot drop as of April 18, 1996, the next question is the severity of that foot drop from April 18, 1996 to November 3, 1996. Nothing in the June 2002 rating decision or the evidence of record suggests that the severity of the Veteran's right foot drop changed between April 18, 1996 and November 4, 1996. Therefore, the Board is satisfied that the Veteran should, at a minimum, have a 60 percent rating for right foot drop as of April 18, 1996. Issue 2: Entitlement to an automobile allowance Background Law VA may provide, or assist in providing, an "eligible person" with an automobile or other conveyance, and necessary adaptive equipment. 38 U.S.C. §§ 3902 (a), (b)(1). A Veteran may receive financial assistance for providing an automobile or other conveyance and adaptive equipment only if the Veteran is entitled to compensation for any of the disabilities described below, and if such disability is the result of an injury incurred or disease contracted in or aggravated by active military, naval, or air service: (i) The loss or permanent loss of use of one or both feet; or (ii) The loss or permanent loss of use of one or both hands; or (iii) The permanent impairment of vision of both eyes of the following status: central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than twenty degrees in the better eye; or (iv) Severe burn injury: Deep partial thickness or full thickness burns resulting in scar formation that cause contractures and limit motion of one or more extremities or the trunk and preclude effective operation of an automobile; or (5) Amyotrophic lateral sclerosis. 38 U.S.C. §§ 3901(1)(A), 3902(b)(2); see also 38 C.F.R. § 3.808(b). The term adaptive equipment means generally that equipment which must be part of or added to a conveyance manufactured for sale to the general public to make it safe for use by the claimant and to assist him or her in meeting the applicable standards of licensure of the proper licensing authority. See 38 C.F.R. § 3.808(e). The regulation further provides that, with regard to automobiles and similar vehicles the term includes a basic automatic transmission as to a claimant who has lost or lost the use of a limb. See 38 C.F.R. § 3.808(e)(1). The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc. in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. § 3.350(a)(2) of what constitutes loss of use of a foot or hand include extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity or shortening of the lower extremity of three and a half inches or more. Complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve is also considered loss of use of a foot under 38 C.F.R. § 3.350(a)(2). Merits In January 1984, the AOJ awarded the Veteran special monthly compensation under § 38 U.S.C. § 314(k), which Congress has since renumbered as 38 U.S.C. § 1114(k), and 38 C.F.R. § 3.350(a). It granted the special monthly compensation "on account of loss of use of one foot," effective July 19, 1982. The Veteran has received this benefit ever since, i.e., for almost 41 years. Based on the legal framework articulated above, the AOJ should have awarded an automobile allowance, as a downstream issue, based on its grant. Indeed, it even stated this in the June 2002 rating decision on appeal: For the record, the Veteran has been authorized an automobile allowance in the past based on the loss of use of foot and rating for that purpose is not necessary at this time. Because of this oversight and because the issue of an automobile allowance is intertwined with the increased rating claims on appeal, the Board has jurisdiction of the issue. Accordingly, it will grant the benefit to effectuate the AOJ's intent and because the Veteran meets the eligibility criteria. Issue 3: Entitlement to a TDIU prior to April 24, 2019 TDIU Background Law The VA regulation defining eligibility for a TDIU is 38 C.F.R. § 4.16. This regulation, however, does not define the procedure by which a Veteran may claim a TDIU. Instead, VA practice and case law have defined two ways formal and informal. A formal claim exists when VA receives a VA Form 21-8940. An informal claim, in contrast, is created pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Rice holds that a claim for a TDIU is part of any open rating issue (initial or increased) when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal, and it attaches for the entire rating period. A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In 2019, the U.S. Court of Appeals for Veterans Claims (CAVC), issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to the veteran's occupational history, education, skill, and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Merits In March 2022, the Board, in Docket No. 220131-215294, granted a TDIU effective April 24, 2019. As of that date, the Veteran had nine service-connected disabilities with a combined disability rating of 90 percent. They were 1) post-operative residuals of a herniated nucleus pulposus of the lumbar spine, rated as 60 percent disabling; 2) post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop, rated as 60 percent disabling; 3) transitional cell carcinoma of the bladder, rated as 20 percent disabling; 4) folliculitis, rated as 10 percent disabling; 5) tinnitus, rated as 10 percent disabling; 6) cervical spondylosis, rated as 10 percent disabling; 7) genital herpes, rated as 0 percent disabling; 8) bilateral hearing loss, rated as 0 percent disabling; and 9) hypertension, rated as 0 percent disabling. He also had special monthly compensation based on loss of use of his right foot. In its decision, the Board found: The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected lumbar and cervical spine disabilities, right foot drop, and residuals of bladder carcinoma. VA outpatient treatment records reflect treatment for constant lumbar spine pain and right foot drop with use of a foot brace for mobility. Private medical records reflect treatment for residuals of bladder carcinoma, and VA examinations reflect that he has urinary leakage and frequency with use of absorbent materials. In an August 2020 affidavit, the Veteran stated that he had constant pain in his back that flared up daily, he was unable to move his head from side to side due to his back and neck conditions, and his right foot disability limited his ability to walk and drive, and he wore an assistive device so that he did not trip on his foot. In a November 2020 vocational assessment, K.M.D., M.Ed., CRC, noted that she interviewed the Veteran, and he reported that due to his lumbar spine disability, cervical spine disability, and right foot drop, he could not stand or walk for up to 15 minutes, and could not sit longer than 15 minutes before needing to change position. She opined that these limitations would cause him to be off-task and nonproductive for more than 10 percent of the workday. The Board has recounted its prior analysis because it informs the analysis it must now perform. The Board did not discuss Docket 97-29 723 in its March 2022 decision. Docket 97-29 723, as explained above, began with an increased rating claim for post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop on April 18, 1996. Because that claim remains open and the Veteran claimed a TDIU, in part, due to post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop, the Board must analyze entitlement from April 18, 1996 to April 23, 2019. The Veteran, in his December 2020 VA Form 21-8940, "Veteran's Application for Increased Compensation Based on Unemployability," stated that he became too disabled to work on "08/XX/2007." Because the Veteran did not specify a date within the month of August 2007, the Board will use August 1, 2007 for simplicity. Accordingly, the Board will analyze entitlement to a TDIU from August 1, 2007. As of August 1, 2007, the Veteran had seven service-connected disabilities with a combined disability rating of 90 percent. They were 1) post-operative residuals of a herniated nucleus pulposus of the lumbar spine, rated as 60 percent disabling; 2) post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot drop, rated as 60 percent disabling; 3) cervical spondylosis, rated as 10 percent disabling; 4) folliculitis, rated as 10 percent disabling; 5) tinnitus, rated as 10 percent disabling; 6) genital herpes, rated as 0 percent disabling; and 7) bilateral hearing loss, rated as 0 percent disabling. He also had special monthly compensation based on loss of use of his right foot. By comparing the Veteran's disability pictures on August 1, 2007 and April 24, 2019, the Board observes that the latter was worse than the former in terms of number of disabilities (nine vs. seven), but the combined disability rating was the same (90 percent). Moreover, the severity of the Veteran's spinal and nerve impairments (post-operative residuals of a herniated nucleus pulposus of the lumbar spine; post-operative residuals of a herniated nucleus pulposus of the lumbar spine with right foot; cervical spondylosis; and loss of use of the right foot) was the same. This is notable because these disabilities largely drove the Board's analysis, as excerpted above. Indeed, it found these disabilities precluded substantially gainful employment despite the Veteran's education (master's degrees in social work and business) and work history (helicopter pilot, sexual assault response coordinator, clinical social worker, and deputy sheriff). Between August 1, 2007 and April 23, 2019, the Veteran was employed for two months (April 2008 to June 2008). He also had $7,075 of earned income in 2013 for which, according to his VA Form 21-8940, he does not know the source. The Veteran's representative, in December 2020, explained that he left the 2008 employer "due to his inability to perform his duties." Viewing the Veteran's employment history over this approximately 12-year window, the Board finds that it did not materially differ from April 24, 2019. Put another way, the Veteran's ability to obtain and maintain substantially gainful employment on August 1, 2007 was the same as it was on April 24, 2019. Given the foregoing, the Board finds entitlement to a TDIU is warranted from August 1, 2007. REASONS FOR REMAND Issue 4: Entitlement to a rating greater than 60 percent for post-operative residuals of a herniated nucleus pulposus of the lumbar spine Issue 5: Entitlement to a rating greater than 60 percent for right foot drop Under 38 C.F.R. § 20.1305(c), any pertinent evidence that is submitted to the Board, including evidence obtained and added to the file by VA, must be referred to VA for initial review unless this right is waived by the appellant or representative in writing or on the record during a hearing. Additionally, under 38 U.S.C. § 7105(e)(1), for substantive appeals received on or after February 2, 2013, a waiver of VA review is not required for new pertinent evidence that is submitted by the appellant or representative, and the Board may proceed with adjudication and consideration of the new evidence in the first instance. VA has not interpreted this automatic waiver to apply, as here, to evidence the appellant did not submit. The AOJ issued a Supplemental Statement of the Case on June 10, 2002. It also subsequently examined the Veteran for his spinal and nerve disabilities in March 2021 and October 2022, respectively, and added relevant VA treatment records over the last 20 years. Because the AOJ did not readjudicate Issues 4 and 5 prior to certifying the appeal to the Board in March 2023, remand for a Supplemental Statement of the Case is warranted. Issue 6: Entitlement to an effective date earlier than April 18, 1996 for the grant of a separate 60 percent rating for right foot drop Above, the Board determined the Veteran warranted a 60 percent rating for right foot drop separate from his 60 percent rating for post-operative residuals of a herniated nucleus pulposus of the lumbar spine as of April 18, 1996. The Veteran, in June 2002, appealed the effective date of the AOJ's selection of November 4, 1996 (which the Board has revised) as the effective date of this 60 percent rating for right foot drop. The AOJ has not issued a Statement of the Case for this issue, so remand is warranted under Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Issue a Statement of the Case for the issue of an effective date earlier than April 18, 1996 for the grant of a separate 60 percent rating for right foot drop. Notify the Veteran of his appellate rights if the issue is not granted in full. 2. Readjudicate the issues of a) entitlement to a rating greater than 60 percent for post-operative residuals of a herniated nucleus pulposus of the lumbar spine, and b) entitlement to a rating greater than 60 percent for right foot drop. Specifically, the AOJ should consider the evidence added to the claims file since the June 2002 Supplemental Statement of the Case. If those issues are not granted in full, issue a Supplemental Statement of the Case. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.