Citation Nr: 18151803 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-19 936 DATE: November 20, 2018 REMANDED Entitlement to an earlier effective date for service connection for a cervical spine disability. Entitlement to an earlier effective date for a 20 percent rating for a cervical spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 2003 to May 2004, November 2004 to June 2007, and from November 2008 to January 2010, with additional service in the Army National Guard from October 1977 to February 1978, February 1995 to May 1995, and October 2001 to May 2002. 1. Entitlement to an earlier effective date for service connection for a cervical spine disability is remanded. 2. Entitlement to an earlier effective date for a 20 percent rating for a cervical spine disability is remanded. The Board finds that the issue of an earlier effective date for the grant of service connection for cervical spine degenerative joint disease and the assignment of a 20 percent rating, was raised by the record. A May 2013 rating decision established service connection for a neck condition, and assigned a 10 percent rating effective January 26, 2010. In June 2013, the Veteran filed a claim for an increased rating for the neck condition. A January 2014 rating decision recharacterized the disability as cervical spine degenerative joint disease and assigned a 20 percent rating, effective May 14, 2013. A June 2014 decision continued the 20 percent rating for cervical spine degenerative joint disease. A timely notice of disagreement was filed on August 5, 2014. A March 2016 statement of the case denied an increased rating for cervical spine degenerative joint disease. In a May 2016 appeal form, the Veteran indicated that he was only appealing two issues from the statement of the case, the date of the award of cervical spine disability and TDIU. In the remarks section, the Veteran stated that although “the cervical spine shows claim dates of February 24, 2010 and May 14, 2013, my local VSO has a notice of disagreement to a neck claim dated in 2008.” The Veteran further stated “I would appreciate examination clarification on the earliest possible effective date for my neck.” The Veteran did not indicate on the appeal form that he was appealing the rating assigned for the cervical spine disability, just that he wanted consideration for an earlier effective date. Therefore, the claims for earlier effective date for service connection and for a 20 percent rating are remanded for appropriate action, to include readjudication of both claims with consideration of all evidence of record and issuance of a supplemental statement of the case. 38 C.F.R. § 19.9(b). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The claim for TDIU is inextricably intertwined with that pending claim and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Associate any pertinent VA or private medical records that are not already of record with the claims file. 2. Adjudicate the claims for earlier effective date for service connection and for a 20 percent rating for a cervical spine disability with consideration of all evidence of record. If any decision is adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response, and return the claim to the Board. 3. Schedule the Veteran for a VA examination with a medical doctor to obtain an opinion regarding unemployability. The examiner should provide an opinion as to whether, without regard to the Veteran’s age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent probability or greater) that the service-connected disabilities, either separately or in combination, make the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. If the Veteran is felt capable of work, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. After a review of the record and interview with the Veteran, the examiner should opine as to what date the Veteran became unemployable due to service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel