Citation Nr: 21004111 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-31 125 DATE: January 26, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left upper extremity is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded. Entitlement to a compensable rating prior to October 24, 2020, and in excess of 10 percent thereafter, for radiculopathy of the left lower extremity is remanded. Entitlement to a compensable rating prior to October 24, 2020, and in excess of 10 percent thereafter, for radiculopathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 2004 to September 2008. The Veteran testified before the Board at a March 2018 video conference hearing. This case comes on appeal of an April 2011 rating decision and was most recently before the Board in May 2019. By way of background, in the April 2011 rating decision on appeal, the agency of original jurisdiction (AOJ) granted entitlement to service connection for a cervical spine disability and for a lumbar spine disability. The Veteran appealed the initial ratings for those disabilities and the claims eventually came before the Board. In May 2018, the Board remanded the increased rating claims for cervical and lumbar spine disabilities. At that time, the Board also noted that the Veteran’s medical record demonstrated complaints of associated neurological symptoms, to include radiculopathy of the bilateral upper and lower extremities. The case came before the Board once again in May 2019. At that time, the Board determined that the record contained sufficient information to adjudicate the issues of increased ratings for the cervical and lumbar spine disabilities. However, the Board noted that in VA examinations subsequent to the May 2018 remand, the examiners had not addressed the Veteran’s radiculopathy symptoms, as had been instructed in the Board’s May 2018 decision. In the interest of preventing further delay, the Board therefore decided the issues of increased ratings for the Veteran’s cervical and lumbar spine disabilities, while at the same time remanding claims of entitlement to separate compensable ratings for radiculopathy of the bilateral upper and lower extremities. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (“Evaluate any associate objective neurologic abnormalities…separately, under an appropriate diagnostic code”). In October 2020, the AOJ granted entitlement to separate, 20 percent ratings for radiculopathy of the left and right upper extremities, effective the date of the Veteran’s claim for service connection for a cervical spine disability. Then, in December 2020, the AOJ granted entitlement to separate, 10 percent ratings for radiculopathy of the left and right lower extremities, effective October 24, 2020—the date of a VA examination showing a diagnosis of the condition. The AOJ then returned the case to the Board in December 2020 without the issuance of a supplemental statement of the case (SSOC). In the absence of the SSOC, the Board cannot adjudicate the issues presented without prejudice to the Veteran’s due process rights. In addition to notifying the Veteran of any outstanding benefits that remain on appeal, the issuance of the SSOC is a necessary preliminary action that allows the Veteran to opt in to the modernized appeals system set in place by the Appeals Modernization Act, if he so chooses. Thus, without the SSOC, the Veteran has not been afforded the full slate of appellate choices guaranteed him by law. Accordingly, on remand, the AOJ should issue an SSOC for all benefits sought that remain on appeal. The matters are REMANDED for the following action: For the issues stemming from the Board’s May 2019 remand, listed above, issue a supplemental statement of the case for all benefits sought that remain on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.