Citation Nr: 20003574 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 14-30 579 DATE: January 15, 2020 REMANDED Entitlement to an increased rating in excess of 30 percent for a cervical spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1974 to October 1977. This matter returns to the Board of Veteran’s Appeals (Board) following a remand decision from the Board in April 2018. The claims presently on appeal come before the Board under the Legacy System of Appeals. In October 2019, the Veteran was granted service connection for both right and left upper extremity radiculopathy, as secondary to his cervical spine disability, and was assigned ratings of 50, and 40 percent respectively. In November 2019, the Veteran filed a timely notice of disagreement with the ratings assigned for those disabilities, selecting Higher-Level Review under the Appeals Modernization Act (AMA). Here, the Board recognizes that 38 C.F.R. § 4.71a, Diagnostic Code 5235, Note 1, instructs the Board to evaluate any associated objective neurological abnormalities of a spine disability separately. However, because the cervical spine rating is before the Board under the Legacy system, and the radiculopathy ratings are appealed under the AMA, the Board cannot take jurisdiction over the radiculopathy ratings at this time. In this regard, the Board recognizes that the Veteran’s ratings will be given due consideration under the Higher-Level Review stream, indeed additional development has already been undertaken with regard to that claim, and should he wish to appeal those issues to the Board following that review, he is welcome to do so. Finally, the Veteran submitted a claim for TDIU in November 2019 as well as statements from himself and a former supervisor in relation to this claim. Therefore, the Board finds that the Veteran has raised the issue of TDIU, even without a formal claim, under the holding Rice v. Shinseki as part and parcel of the increased rating claim on appeal. As such the Board will take jurisdiction of this issue. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an increased rating in excess of 30 percent for a cervical spine disability is remanded Inasmuch as the Board regrets any further delay in the adjudication of this claim, an additional remand is necessary. Although present law states that new evidence submitted by the Veteran following the most recent consideration by the RO need not be remanded for such review absent a request by the Veteran for RO consideration, see Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, § 501, 126 Stat. 1165, 1190 (Camp Lejeune Act); 38 C.F.R. § 20.1304, the Board may not review evidence created by VA in the first instance without prior RO consideration. In this matter, the Veteran was afforded a new VA examination of his cervical spine disability in January 2020, after the appeal was recertified to the Board. As the evidence in the resulting VA examination report has a direct bearing on the claim, the Board cannot review it absent prior consideration by the RO without prejudice to the Veteran. As such, the Board must remand this claim for consideration of that examination report, and a supplemental statement of the case issued. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Finally, because a decision on the remanded issue of an increased rating for the cervical spine could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claims for TDIU is required. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Readjudicate the issues on appeal in light of all evidence of record to include the January 2020 VA spine examination. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate 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.