Citation Nr: 18142389 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 10-26 509 DATE: October 15, 2018 REMANDED 1. Entitlement to a rating in excess of 30 percent for residuals of a cervical injury is remanded. 2. Entitlement to a rating in excess of 30 percent for right upper extremity cervical myelopathy is remanded. 3. Entitlement to a rating in excess of 20 percent for left upper extremity cervical myelopathy is remanded. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 1964 to December 1964. The increased rating claims are before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision; the TDIU claim is before the Board from an April 2008 rating decision. In June 2016, the case was remanded for additional development. 1., 2., 3. Entitlement to increased ratings for residuals of a cervical injury, right upper extremity cervical myelopathy, and left upper extremity cervical myelopathy is remanded. In June 2016, the Board remanded these issues for several reasons, including the issuance of a Statement of the Case (SOC) per See Manlincon v. West, 12 Vet. App. 238 (1999). In August 2018, the Agency of Original Jurisdiction (AOJ) issued a Supplemental SOC (SSOC) addressing the issues remanded for an SOC. Under 38 C.F.R. § 19.31(a), a SSOC may not be used to announce a decision on an issue not previously addressed in a SOC. See Mayfield v. Nicholson, 499 F.3d 1317, 1324 (Fed. Cir. 2007). The Board’s remand directive has not been complied with, and corrective action is necessary. The Veteran is advised that the matters of the increased ratings are not fully before the Board at this time, and will be so only if he timely files a substantive appeal after a SOC is issued. [The Board’s other remand directives, to determine whether the Veteran desires a DRO hearing and associate Social Security Administration (SSA) disability records, were completed.] Also, further development of the evidentiary record is required; the record suggests that pertinent private medical records remain outstanding. In September 2016 (in response to the Board’s June 2016 remand), the Veteran’s attorney submitted copies of private treatment records from Dr. Santiago through March 2016 (from Barnes-Jewish Hospital and Washington University in St. Louis). On February 2018 VA cervical spine examination, the Veteran reported receiving private treatment from his neurosurgeon, Dr. Santiago, every 6 months, and cervical muscle Botox injections from Dr. Maiti every 4 months. [The Board notes that a February 2016 VA clinical record shows he was authorized to see Dr. Santiago through the Choice-First program.] The most recent treatment record (uploaded into the VA CAPRI record) from Dr. Santiago is from April 2017; the record does not contain treatment records from Dr. Maiti. As all outstanding records of evaluations or treatment the Veteran has received for his neck and upper extremities during the evaluation period are pertinent evidence, they must be secured. [In June 8, 2018, correspondence (following receipt of a May 2018 VA Form 21-8940 which identified Drs. Santiago and Maiti as his treating physicians), VA asked the Veteran to provide authorizations to allow VA to obtain records from Dr. Paul Santiago and Dr. Baijayanta Maiti; he did not respond. The Veteran is advised that a governing regulation, 38 C.F.R. § 3.158, provides that where evidence requested in connection with a claim for VA benefits is not received within a year following the request (here, by June 8, 2019), the claim will [emphasis added] be considered abandoned.] 4. Entitlement to a TDIU rating is remanded. The claim for a TDIU rating is inextricably intertwined with the claims being remanded, and appellate consideration of that matter must be deferred pending resolution of the increased ratings claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Obtain for the record all outstanding (updated to the present) records of VA evaluations and treatment the Veteran has received for his neck and bilateral upper extremity disabilities. Also ask him to identify all private providers of evaluations and/or treatment he received for his neck and bilateral upper extremity disabilities (records of which are not already in the record), and to submit authorizations for VA to secure for the record complete clinical records of such evaluations and treatment from all providers identified, including specifically from Dr. Baijayanta Maiti, and, since April 2017, from Dr. Paul Santiago (at Barnes-Jewish Hospital or any other Washington University medical facility). 2. Thereafter, if (and only if) additional pertinent treatment records are received, and the claim is not processed as abandoned under 38 C.F.R. § 3.158(a), review the record and arrange for any further development indicated (including contemporaneous examination(s) to assess the severity of the disabilities if records received suggest a worsening of those disabilities) and issue an appropriate SOC [not SSOC] in these matters. Advise Veteran and his attorney of the time limit for perfecting an appeal in these matters, and afford them opportunity to do so. If an appeal in these matters is timely perfected, return these matters to the Board for appellate review. 3. Review the record and readjudicate the claim for TDIU considering the development sought above, and the determinations made on all other claims remanded. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel